The Law Of The European Union: The Court of Justice of the EU, Courts and Tribunals

The European Union was initially set up in 1952 in the aftermath of World War two in order to stop any sort of atrocity from happening again. However, throughout the 20th and 21st century it has developed in to a political and economic entity with goals such as: promoting peace, offering freedom, security and justice[footnoteRef:1]. The European Union is made up of several institutions that help it function politically, economically and legally. The main institutions are: The Council of the European Union (commonly known as The Council of Ministers), The European Council, The European Commission, The European Parliament and The Court of Justice of the EU (ECJ). This essay will examine the requirements for a referral to the ECJ on questions of EU law and when a referral may not be needed with reference to European and National common law. [1: https://europa.eu/european-union/about-eu/eu-in-brief_en]

The procedure that deals with referring questions of EU law to the Court of Justice is called the preliminary rulings and is dealt with under Article 267 of the Treaty for the Functions of the European Union (TFEU).[footnoteRef:2] Here a national court, from any member state, refers a question of EU law to the ECJ, who give an interpretation of what the law is but does not give a final definitive judgement on it. The first case that used the preliminary procedure was Van Gen den Loos,[footnoteRef:3] in which the ECJ ruled that individuals could also rely on EU law (or then known as community law) before their respective national courts to attain their rights under EU law. Here a single individual may indirectly challenge their Member state by obtaining an authoritative ruling from the ECJ which can give him/her the possibility of obtaining a remedy from their national court. [2: Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union (TFEU) [2016] OJ C202/1] [3: Case C26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963]]

The article[footnoteRef:4] starts by stating that the ECJ and only the ECJ has authority to give these preliminary rulings and sets out what these rulings can be in regard to.[footnoteRef:5] The rulings can be in regard to the interpretation of European Union treaties such as The Treaty Establishing the European Atomic Energy Community[footnoteRef:6]. As well as how a piece of EU legislation should be understood and if it is even valid in the circumstances present.[footnoteRef:7] The article goes on to state that any court or tribunal of a member state, regardless of its level of importance, can request a preliminary ruling from the ECJ. This request must be necessary for the national court/tribunal to give judgement and not for any other arbitrary reason.[footnoteRef:8] If a national court/tribunal has no remedy under national law for a specific issue then that matter will automatically be brought to the ECJ to be dealt with.[footnoteRef:9] Lastly, the article identifies that were a question deals with a person in custody then the ECJ should act as quick as possible to clarify this matter as it involves clear Human rights issues.[footnoteRef:10] [4: Article 267 of the Treaty on European Union and the Treaty on the Functioning of the European Union (TFEU)] [5: Ibid at “The court of Justice of the European Union shall have jurisdiction to give preliminary rulings…” ] [6: Consolidated version of the treaty establishing the European atomic energy community (2010/c 84/01)] [7: Ibid at “…concerning: (a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union…” ] [8: Ibid at “…Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.”] [9: Ibid at “Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.”] [10: Ibid at: “If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay.”]

The first point to be addressed is what constitutes a “court” or “tribunal” as these are the only two bodies that can ask the ECJ for a preliminary ruling. Although there is no strict definitions in the treaties for the terms “court or tribunal”, EU common law has given the essential characteristics of what can be accepted for these terms. The case 246/80 Broekmeulen [1981][footnoteRef:11] regarded B who was a general practitioner (GP), he wanted to register with the relevant registration committee and took his case to the Appeals committee. The ECJ found here that the expression “court or tribunal” applied here as the committee acted within public authority and was assisted by these authorities in actualizing these decisions.[footnoteRef:12] Certainly bodies that act in a similar fashion to the case above and perform its decisions with approval from public authorities can be classed as a “court” or “tribunal”. If this is met then that “court” or “tribunal” may ask for a ruling, if the question of EU law is crucial to the decision of that “court” or “tribunal”. It should be noted that although any court can refer to the ECJ for a ruling many do not, as there is usually an appeal to a higher domestic court which can be used instead of instantly referring to the ECJ. However, it follows that the highest court in a member state must refer to the ECJ when a question relates to the invalidity of EU law. [11: Case C246/80 C. Broekmeulen v Huisarts Registratie Commissie [1981] ] [12: Ibid at para 8 of Judgement “The appeals committee is a body set up by the society and it is appropriate therefore to deal first with the question whether it ought to be considered as a “court or tribunal” of a member state within the meaning of article 177 of the treaty”. ]

The onus is on the “court” or “tribunal” to refer the question to the ECJ but it is up to that body to decide whether EU law is relevant to its decision or not. However, the early case of Bulmer and Bolliger [1974] gave four criteria[footnoteRef:13], as set out by Lord Denning, for a case to be deemed as “necessary” to be referred for a ruling. This restrictive approach in Bulmer, was questioned in the Court of Appeal in England and Wales via the cases of Commissioners of Customs and Excise v Samex APS[footnoteRef:14] and R. v International Stock Exchange of the United Kingdom and the Republic of Ireland Ltd[footnoteRef:15]. In the latter case, Lord Bingham directed that a reference should be made unless, the national court can “with complete confidence” resolve the question of interpretation of EU law itself. Hereby demonstrating that even when a question of EU law arises, national courts should, in some cases, be able to interpret and resolve the question without the assistance of the ECJ. [13: The decision on the community law point must be conclusive of the case; the national court may follow a previous Court of justice ruling, but is free to refer the same point again if it wishes to obtain a different ruling; it may apply the doctrine of acte clair; in general it is better to decide the facts first, before deciding whether a reference is needed. ] [14: [1983] 3 C.M.L.R. 194] [15: [1993] Q.B. 534]

Courts and Tribunals have the power to seek an authoritative ruling however, they do not always have to seek a ruling if certain doctrines are applicable. One of these being the doctrine of Acte Claire which can be found in the case of CLIFIT[footnoteRef:16]. The Acte Claire doctrine essentially is where if the proper interpretation of EU law is found then the answer is clear. There is no obligation to refer, when, as stated in CLIFIT that: “the correct application of community law may be so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved”[footnoteRef:17]. It follows that a question of EU law should not even arise if the answer is clear to the court and therefore there is no need for an authoritative ruling via Article 267. Therefore, if the court can apply EU law without the need for a referral to the ECJ for matters of interpretation then it should do so, as the matter is clear enough for national courts to interpret. [16: Case C- 283/81 Cilfit EU:C:1982:335 [1982]] [17: Ibid at Judgement, Summary [5]]

Another doctrine that is applicable is Acte éclairé. This doctrine is where national court is relieved from the duty to refer where the situation is “materially identical with a question which has already been the subject of a preliminary ruling in a similar case”[footnoteRef:18]. Essentially meaning that a previous court has already ruled on the question at hand. The case of Hung[footnoteRef:19] which concerned citizenship was identical to the case of Kaur[footnoteRef:20]. Once the questions were answered for Kaur and a ruling was given, the ECJ gave an almost identical ruling to Hung as they had not withdrawn their referral to the ECJ. In this case, even if the court in Hung had withdrawn their questions, they would have had to then look at the authoritative ruling in the Kaur case in order to determine if they had interpreted EU law correctly. Therefore, the question of EU law in Hung is not needed to be referred for an authoritative ruling as a similar, almost identical ruling was given in Kaur. [18: Joined Cases C-28/62 to C-30/62 Da Costa en Schaake EU:C:1963:6 [1963]] [19: Case C-256/99 Hung, unpublished ECLI: EU: C: 2001:406 [2001] ] [20: Case C-192/99 Kaur ECLI:EU:C:2001:106 [2001] ]

Overall, to say that all questions of EU law should be asked to the ECJ for an authoritative ruling would be over generalisation of what happens in reality. National courts have discretion to refer to the ECJ for a ruling, when a difficult question of EU law presents itself. It is not as simple to say that when any question of EU law appears in a national court or tribunal then it automatically should be referred to the ECJ. The national court or tribunal may not require referring the question if they can easily interpret the EU law or if a similar question has appeared previously. They are then entitled to look at that interpretation and see if it can be applied or not to the case at hand if the facts are similar. It would be more accurate to say that when a question of EU law arises national courts and tribunals must attempt to interpret EU law as correctly as possible with the assistance of previous EU common law. If this cannot be done and the doctrines of Act clair and Acte eclaire are not applicable, then a referral to the ECJ should be the next step in reaching a conclusion to the case at hand.

Bibliography

1. http://teise.org/wp-content/uploads/2017/06/Limante.A.-Acte-clair.-JCMS.pdf
2. https://curia.europa.eu/en/content/juris/c2_juris.htm
3. Horspool European Union Law (10th edition Oxford University Press 2018)
4. Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union (TFEU) [2016] OJ C202/1
5. Consolidated version of the treaty establishing the European atomic energy community (2010/c 84/01)
6. Case C26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963]
7. Case C246/80 C. Broekmeulen v Huisarts Registratie Commissie [1981]
8. Commissioners of Customs and Excise v Samex APS [1983] 3 C.M.L.R. 194
9. R. v International Stock Exchange of the United Kingdom and the Republic of Ireland Ltd [1993] Q.B. 534
10. Case C- 283/81 Cilfit EU:C: 1982:335 [1982]
11. Joined Cases C-28/62 to C-30/62 Da Costa en Schaake EU:C: 1963:6 [1963]
12. Case C-256/99 Hung, unpublished ECLI: EU: C: 2001:406 [2001]
13. Case C-192/99 Kaur ECLI:EU:C:2001:106 [2001]