Preliminary Ruling on-Karar Davasi

Preliminary Ruling (Ön-Karar Davası)

Article 234 EC

“The Court of Justice shall have jurisdiction to give preliminary rulings concerning:– (a) the interpretation of this Treaty;– (b) the validity and interpretation of acts of the

institutions of the Community and of the ECB;– (c) the interpretation of the statutes of bodies

established by an act of the Council, where those statutes so provide.

Article 234 EC

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 of Justice to give a ruling thereon

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 of Justice.”

Jurisdiction to give Preliminary ruling

In addition to the ECJCFI can provide preliminary ruling in some limited casesbut if there is a risk for the unity or consistency of EC lawpreliminary ruling given by CFI may be subject to review by the ECJ.

Application for preliminary rulings cannot be done by individualsonly the national courts can refer a case

Process briefly

Who can invoke? Who can refer? Questions... Pending case Answers Binding interpretation May refer again?

Which provisions can be referred?

“interpretation of this Treaty”:– This includes all treaties (founding + amending

etc.)– ECJ does not give a judgment on the validity of

national lawIt interprets the Treaty– But the consequence of such an interpretation

may be that a provision of national law is incompatible with EC law.

Which provisions can be referred?

“the validity and interpretation of acts of the institutions of the Community and of the ECB”– Validity of a Community decision or regulation– includes non-binding “acts” such as

recommendations

Which national court can refer?

In Art. 234 “court or tribunal of a member state” is not clearit is for the ECJ to decide whether a national body is court or tribunal

The ECJ applies different criteria:– Whether established by law or not– Whether its jurisdiction is compulsory or not– Whether independent or not

Which national court can refer?

Arbitral courts or tribunals (arbitration)? Constitutional courts of member states? Complicated situation in UKCourt of Appeal/House

of Lordsappeal if leave is granted. Even some administrative councils in France on

disciplinary penalties for civil servants were accepted as capable to refer

If a national rule prevents the national court from raising a matter of EC law of its own motionaccording to the ECJ this law is contrary to EC law

Failure to refer

What if the national court fails to refer?– This will be a type of failure to comply with the EU

law– As explained beforeexecutive, legislative and

judiciary may cause the state responsibility– In such cases the Commission commences the

process and then urges the member state and issues the reasoned opinion...

Conditions for the referral

There are two main conditions for an issue to not to be referred to the ECJ:

– 1- If that part of the EU law is so clear and there is no need to ask the interpretation (“acte clair”)

– 2- If there is an established case-law (jurisprudence) of the ECJ on the same matter (a previous preliminary ruling) which makes it so obvious for the court

But national court is still able to refer the matter to the ECJ in formal terms

If the above conditions existeven a national court which is normally obliged to refer can be released from this obligation

Case 283/81 CILFIT (1982)

“Therefore the mere fact that a party contends that the dispute gives rise to a question concerning the interpretation of Community law does not mean that the court or tribunal concerned is compelled to consider that a question has been raised within the meaning of Article 177. On the other hand, a national court or tribunal may, in an appropriate case, refer a matter to the Court of Justice of its own motion.”


“...Accordingly, those courts or tribunals are not obliged to refer to the Court of Justice a question concerning the interpretation of Community law raised before them if that question is not relevant, that is to say, if the answer to that question, regardless of what it may be, can in no way affect the outcome of the case.”

“If, however, those courts or tribunals consider that recourse to Community law is necessary to enable them to decide a case, Article 177 imposes an obligation on them to refer to the Court of Justice any question of interpretation which may arise.”


“However, it must not be forgotten that in all such circumstances national courts and tribunals, including those referred to in the third paragraph of Article 177, remain entirely at liberty to bring a matter before the Court of Justice if they consider it appropriate to do so.”

Ultimate authority is vested to the national court but this may cause responsibility of that state.

‘Acte Clair’ Doctrine

National court may feel thatthe meaning is so clear that no reference to the ECJ is needed

Conditions in which it is legitimate for a national court to refuse to refer were described by the ECJ in its CILFIT Case


“Finally, 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. Before it comes to the conclusion that such is the case, the national court or tribunal must be convinced that the matter is equally obvious to the courts of the other Member States and to the Court of Justice. Only if those conditions are satisfied, may the national court or tribunal refrain from submitting the question to the Court of Justice and take upon itself the responsibility for resolving it.”


“... the third paragraph of Article 177 of the EEC Treaty is to be interpreted as meaning that a court or tribunal against whose decisions there is no judicial remedy under national law is required, where a question of Community law is raised before it, to comply with its obligation to bring the matter before the Court of Justice, unless it has established that the question raised is irrelevant or that the Community provision in question has already been interpreted by the Court or that the correct application of Community law is so obvious as to leave no scope for any reasonable doubt. The existence of such a possibility must be assessed in the light of the specific characteristics of Community law, the particular difficulties to which its interpretation gives rise and the risk of divergences in judicial decisions within the Community.”

Conditions not to refer

If: 1- it has established that the question raised is

irrelevant or; 2- that the Community provision in question has

already been interpreted by the Court or; 3- that the correct application of Community law is

so obvious as to leave no scope for any reasonable doubt.

Types of cases where ECJ declines jurisdiction for preliminary ruling

1- If the question has hypothetical nature 2- If the question raised is not relevant to the

resolution of the substantive action in the national court

3- If the questions are not articulated clearly enough for the ECJ to be able to give any meaningful legal response

4- If the facts are insufficiently clear for the ECJ to apply the relevant legal rules

What is the power of the ECJ under preliminary ruling?

Art. 234 empowers the ECJ to interpret the Treatybut does not specifically authorize it to apply the Treaty to the facts of a particular case.

But it is very difficult to identify the distinction between “interpretation” and “application”

The Treaty supposes that the ECJ interprets and the national courts apply that interpretation so “division of authority”

What is the power of the ECJ under preliminary ruling?

The dividing line between interpretation and application is very thin which causes problems

Many of the questions submitted to the ECJ are, by their nature, very detailed and may be answered only by a specific response

The more detailed the ruling given by the ECJ the less there is the national court to do in such cases the national court in a way executes an issue-specific judgment of the ECJ.

Consequences of the preliminary ruling

No clear explanation in Treaties For some writers preliminary rulings have “erga

omnes effect”. For some others they only have “inter partes

effect”. No clear answer from the ECJ so far, but consider

the obligation of national courts to follow the previous interpretations made by the ECJ on the same matter...

ORAMS-Preliminary Ruling

The first question Para. 32 “By its first question, the referring court

asks essentially whether the suspension of the application of the acquis communautaire in the northern area, provided for by Article 1(1) of Protocol No 10, precludes the application of Regulation No 44/2001 to a judgment which is given by a Cypriot court sitting in the Government-controlled area, but concerns land situated in the northern area.”


“37 It follows from a literal interpretation of Article 1(1) of Protocol No 10 that the suspension for which it provides is limited to the application of the acquis communautaire in the northern area. However, in the case in the main proceedings, the judgments concerned, the recognition of which is sought by Mr Apostolides, were given by a court sitting in the Government-controlled area.”


“In the light of the foregoing, the answer to the first question is that the suspension of the application of the acquis communautaire in the northern area, provided for by Article 1(1) of Protocol No 10, does not preclude the application of Regulation No 44/2001 to a judgment which is given by a Cypriot court sitting in the Government-controlled area, but concerns land situated in the northern area.”

Documents

Preliminary Ruling on-Karar Davasi