Preliminary Ruling under Article Essay

Question 1.

EC legislation and the national legislation of the Member States were integrated by the European Community Treaties. As such the national courts act in accordance with Community law and refer cases to the European Court of Justice. National judges play a key role in implementing Community law in their Member States. The preliminary reference system thus enables the national courts to comply with Community law and maintain cooperation with the European Court of Justice. Under this system the national courts refer cases for a preliminary ruling to the ECJ, in accordance with the provisions of Article 234 EC .

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Article 234 EC contains the jurisdictional requirements for a preliminary reference. First, the referring institution has to be a court or tribunal of a Member State. Second, the referral should be in respect of Community law’s validity or interpretation and finally, the referring court or tribunal should determine whether at all there is a need to deliver a judgment, by the ECJ. In Bosman it was opined by the Advocate General Lenz that the ECJ can refuse to consider a preliminary ruling request, if such a request apparently bears no relation to the main action .

The European Court of Justice is an autonomous body that is independent of any Member State or institution of the European Union. The major function of the ECJ is to interpret the Community Treaties and Community law in accordance with the spirit of the EU, and to implement the EC law, throughout the EU. Therefore, the ECJ shoulders the responsibility of uniformly applying the EC law in all Member States. It constitutes the judicial pillar of the EU .

While hearing cases, if a conflict arises between the national legislation and the EC law, with regard to the application of the Community law; the national courts should not declare the EC law to be inapplicable. It is the duty of the ECJ to resolve such situations through its case law. Article 234 EC contains the procedure to be adopted when national courts refer cases to the ECJ for a preliminary ruling. A wide range of jurisdictional requirements have to be met by the ECJ in order to give a preliminary ruling. However, the ECJ can refuse to entertain a preliminary reference if it is satisfied that Community law is not invoked in these referred cases .

In the Meilicke case, the issue was the right of shareholders to obtain information from the company management, as per the provisions of Directive 77/91/EEC. The Directive requires certain safeguards to be implemented by the Member States, so as to protect the interests of shareholders and others. The Member States have to act in accordance with the second paragraph of Article 58 of the EC Treaty. The national court referred the case to the ECJ on the compatibility of the German Aktiengesetz with the Directive with regard to the process of forming public limited liability companies, their maintenance and changes in their share capital .

The national court was required to interpret these safeguards in accordance with the Second Directive. The ECJ keenly looked into the facts of the case. Its objective was to determine whether the German legislation, in the context of treating certain cash contribution preceded or followed by the company’s transactions of payment of amounts to shareholders, so as to offset the debts of the company to the shareholders or subscribers, violated Community law. The national court had held that Community law had been violated, because these amounts had been in the form of disguised contributions in kind . However, the ECJ refused to respond to the referral, as it felt that it would be exceeding the scope of its jurisdiction .

The underlying principle involved is that the national courts have to refer novel and subtle questions, regarding the application and interpretation of EC law, while making a reference for a preliminary ruling. Subsequently, the ECJ would develop new case law, which would serve as a guideline to national judges and other legal professionals in the EU.

National courts are expected to develop a pan European perspective and thereby contribute to the integrity of the Union. As such the ECJ does not compel the national courts to refer cases for a preliminary hearing. Though, the ECJ cannot force national courts to submit cases for preliminary reference, Article 234 EC imposes such a requirement in some cases. In some other cases it requires national courts to directly refer the cases to the ECJ by suspending the cases in the first instance itself .

Article 234 EC differentiates between lower courts and national courts of last instance. The lower national courts have discretion, whether to make a reference or not. The national courts of last instance are obliged to refer cases for preliminary reference, if the interpretation of Community law was such that referral was warranted. Most of these cases originate in the lower national courts. Hence, they possess the discretion to refer the cases to the ECJ. The courts of last instance are under an obligation to make such a reference, however, they possess some discretion in this matter and this has been specified in Article 7 EC .

If a national judge has to deal with cases in which the validity and applicability of the EC law is challenged, or if the application of EC law is argued to be illegal; then the national judge is under an obligation to make a referral to the ECJ for a preliminary reference. However, national judges are not competent to declare EC law invalid or unlawful. This is because, if a provision of EC law were to be declared as unlawful, then its application would have to be declared invalid in the entire EU. Therefore, it is unacceptable to declare a provision of the EC law invalid in a particular Member State; while it is valid in other Member States, without any dispute or conflict with national legislation .

In the Foto – Frost case, the ECJ held that the national courts are under an obligation to refer questions regarding the applicability and validity of EC law to it. The ECJ held that national courts could only consider the applicability and legality of Community legislation. A national court cannot declare that a piece of Community legislation is invalid. Hence it only the ECJ that can invalidate Community legislation or an act of an EC institution .

In Gaston Schul Douane-expediteur and International Air Transport Association the ECJ reiterated that the national courts were under an obligation to seek a preliminary reference from it. In Gaston, ECJ ignored the subject matter of the case and only considered the preliminary reference made by the national court. Afterwards, the ECJ held that the referral had been incorrect, because in an earlier decision on a similar subject, it had given the same decision, due to the fact that a specific piece of EU legislation would be declared invalid.

Question 2 [a]

The Employment Tribunals are competent to refer cases, under Article 234 EC, to the ECJ, whenever a clarification is needed regarding an EC Directive. This is exemplified by Coleman . In this case it was held that the ET was well within its powers to make a referral to the ECJ. This is provided for in Rule 58 of the ET Rules of Procedure 2004.

Question 2[b]
A disciplinary committee is neither a court nor a tribunal. Therefore, it is precluded from referring to the ECJ for a preliminary hearing. Moreover, a disciplinary committee, though a quasi – judicial body, is all the same dependent on the administrator; hence, the  ECJ will not accept a preliminary hearing referral from it. This is on the basis of the ruling in Corbiau .

Question 2 [c]

The Appellate Court had deemed the issue to be irrelevant and unarguable and consequently, unfit to be referred to even the House of Lords. Therefore, the issue is definitely not to be referred to the ECJ.  In the Max Mara Fashion Group case, no questions had been submitted for a reference. Further the case was so ambiguous that the ECJ refused to have anything to do with it. It was also unclear as to why the case had been sent for reference and there were no provisions of EC law that had been violated .

Question 2 [d]

The House of Lords need not refer to the ECJ, because it is fully convinced that it has comprehended the piece of legislation under consideration. Since, there is no breach of EC law by the national law, nor is there any difficulty in interpreting EC law, there is no necessity to approach the ECJ for a preliminary reference.

Question 2 [e]

In the Nolle case, the ECJ held that a referral would not be entertained, if its purpose was only restricted to fact finding . As such the ECJ requires a verification of all the facts before filing a reference with it. Moreover, the Home Office is not a judicial body. Therefore, the Home Office cannot refer to the ECJ, in order to ascertain whether the Iranian student is to be deported or not.


Case 314/85, Foto-Frost v Hauptzollamt Lübeck-Ost (1987) .
Case C – 16/90 Nolle v. Hauptzollamp Bremen – Freihafen (1991) ECR I – 5163.
Case C-83/91, Wienard Meilicke v ADV/ORGA FA Meyer AG, [1992] ECR I-4871.
Case C – 24/92, Corbiau v. Administration des Contributions, (1993) ECR I – 1277.
Case C-307/95 Max Mara Fashion Group (1995) ECR I-5083.
C – 415/93 Bosman v UEFA (1995) ECR I – 4921.
Case C-461/03, Gaston Schul Douane-expediteur BV v Minister van Landbouw, Natuur en Voedselkwaliteit, (2005).
Case C-344/04, R (International Air Transport Association and European Low Fares Airline Association) v Department for Transport, (2006).
C – 303/06, S. Coleman v. Attridge Law, Steve Law, (2006).
The Relation Between National Courts and the European Court of Justice in the European Union Judicial System: Preliminary Ruling Regimes According to Articles 234 EC, 68 EC, and 35 EU. February 2007. 3 February 2008. <>

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