If the system of preliminary rulings is based on partnership, should the ECJ ever refuse a request by a national court for such a ruling?
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The objective of the preliminary ruling procedure is to provide uniformity across the whole Community, so that Community law is applied in the same way in all Member States. Under Art 234, the Court of Justice is under a duty to supply all courts in the Community with the information on interpretation of Community law that is necessary to enable them to settle genuine disputes that are brought before them (Foglia v Novello (No 1) (1980)). Under Art 225(3) of the Nice Treaty, the Court of First Instance has gained jurisdiction to hear requests for a preliminary ruling. Before the Nice amendment, only the European Court of Justice had jurisdiction under Art 234. However, despite this change, the relationship between the national courts and the European Union courts is, in theory, one of partnership in respect of Art 234. There is no hierarchy but a commitment to provide a definitive answer to questions from national courts where the latter need information in order to arrive at the appropriate application of EU law.
The procedure is available to any court or tribunal of any Member State. What constitutes such a court has been given a wide interpretation by the ECJ. It is not necessary that the body is recognised as a court by national law, neither must it be called a court. For the ECJ, the important question is whether the body concerned is performing a judicial function. The characteristic of such a function is the power to give binding determinations of the legal rights and obligations of individuals. The ECJ has used the mechanism of preliminary rulings to develop fundamental principles of Community law, such as supremacy and direct effect. However, Art 234 has also been used to facilitate a dialogue between the national courts and the ECJ on issues where national law and Community law seem to be in conflict.
The preliminary ruling procedure recognised the different functions of the national courts and the Community Court. It envisaged this relationship to be of equals as both were seen to be on a horizontal base. If the national court chose to ask a question it entered into a bilateral dialogue with the ECJ. The answers from the ECJ were sent back to that court, even though the answers were public and, therefore, available to everyone. The courts had different functions but a shared objective of applying the law. This is explicit in Art 220 EC but is mirrored in the national courts. Even though many now describe the relationship as more vertical as the importance of both Community law and the ECJ has increased, the Community Court still relies upon national courts to enforce Community law.
There has also been the wider recognition of the acte clair concept, so that even those national courts who were thought to be obliged to make a reference (Art 234(3)) need no longer do so (CILFIT). Although Advocate General Caporti proposed in that case that the concept should not be adopted, the Court rejected that opinion. However, some commentators have suggested that they indicated restrictions or considerations so as to limit its use. The fact remains that CILFIT led to a much more relaxed, yet responsible, approach by those national courts. There are some commentators who say that the development was just pragmatic; there were too many requests for a preliminary ruling. This may have been a factor but the development complemented the increasing role of the national courts in enforcing Community rights with the principle of direct effect or applying Community rules on competition.
In Foglia (No 2) the ECJ made clear that it would be the ultimate decider of the scope of its own jurisdiction. If necessary it would have to examine the circumstances of the reference in order to determine whether the court’s jurisdiction had been properly invoked, but it would not answer hypothetical questions. In the Foglia v Novello cases in 1980 and 1982, the Court held that the reference was an abuse of Art 234, as the case had been artificially constructed as a vehicle for obtaining clarification of Community law. There was, in the opinion of the Court, an absence of any real legal dispute between the parties. In the recent case of Unibet (London) Ltd v Justitiekanstern [2008] the Belgian government submitted that the reference was inadmissible on the principle in Foglia v Novello. However, both the Advocate General and the Court rejected that argument, as there was a genuine dispute requiring resolution involving Swedish Law on Lotteries.
In Foglia v Novello, a French resident, had ordered some wine from Foglia, an Italian wine grower. The contract provided that Novello would not be liable for any French or Italian taxes that were contrary to the free movement of goods between the two countries. When a charge was subsequently levied by French customs, Novello claimed it was unlawful under Art 90 (formerly Art 95 EC). The ECJ said that both parties agreed that the French law was incompatible with Community law and the legal action had been a device to obtain a ruling that the French legislation was invalid. The Court went on to say that such arrangements obliging such rulings would jeopardise the system of legal remedies available to protect private individuals against tax provisions that were contrary to the Treaty. A subsequent second reference by the Italian judge was an attempt to clarify the role of Art 234 and the relationship between the national courts and the ECJ.
However, the ECJ adhered to its earlier decision not to answer the question arising from the customs duty levied by the French law. It held that the Art 234 procedure was not to be used to give abstract advisory opinions, but to contribute to the actual decisions of the cases. The ECJ believes that, like any court, it must be in a position to make an assessment to ensure that it has jurisdiction to hear the case. Normally the Court will rely on the assessment made by national courts, but in exceptional cases it reserves the right to make its own (Dias (1992)). The original division of the functions between national courts and the ECJ may have been separate, but it was equal – with the former deciding whether to refer, while the latter gives the ruling on the questions placed before it. Foglia represented a reshaping of that conception as the ECJ would now assert some control over the suitability of the reference. The ECJ refrained from reviewing the relevance even in cases like Rewe-Zentrale v Hauptzollamt Emmerich (1971) where the national court making the reference admitted that the questions raised were not relevant to the litigation. The questions were answered by the ECJ because the litigation was a test case for similar forthcoming cases. There have been a number of cases where the ECJ has made use of the Foglia principle, such as with the hypothetical nature of the questions. However, a practical problem is the fine line between hypothetical cases and test cases. In Bacardi-Martini v Newcastle United FC (2003) the ECJ refused to deal with a reference because a court in one Member State was asking about the compatibility of another Member States law with EU law.
A second reason why the ECJ may not wish to give a ruling is that the questions raised are not relevant, as in the Meilicke case (1992). The third category where the ECJ may refuse a reference is where the questions are not articulated clearly enough for the Court to give any meaningful legal response, as in AGS Assedic Pas-de-Calais v Dumon & Froment (1995). Although the ECJ may tease out the real question the national court is asking, in this case they thought that it would be wrong to alter the substance of the questions asked. A fourth category is where the facts are insufficiently clear for the Court to be able to apply the relevant legal rules. In the Telemarsicabruzzo case (1993) the Italian court referred two questions to the ECJ concerning the compatibility of national provisions on the distribution of TV frequencies with EC competition law. The national court provided almost nothing by way of explanation for these questions and, therefore, the Court decided that there was no need to answer the questions.
The Court has now incorporated the results of its case law in its Guidance on References by National Courts of Preliminary Rulings, published first in 1996 and now brought up-to-date in 2005/C 143/01, and has recognised that there are limitations to its power to decline to take a reference. In ICI v Calmer (1996) the ECJ stated that ‘A request for a preliminary ruling from a national court may be rejected only if it is manifest that the interpretation of Community law or the examination of the validity of a rule of Community law sought by that court bears no relation to the facts or the subject matter of the main proceedings’. However, even within this context the ECJ has begun to exercise more positive control over its own jurisdiction in the manner redolent of most superior courts.