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The Relationship Between Ec Law And National Law Preliminary References, Direct Effect. Indirect Effect And Inccidental Effect Notes

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TUTORIAL 3: THE RELATIONSHIP BETWEEN EC LAW AND NATIONAL LAW: PRELIMINARY REFERENCES; DIRECT EFFECT, INDIRECT EFFECT AND INCIDENTAL EFFECT

1. Preliminary References on the Interpretation of Community law and the validity of Community acts Craig & de Burca Ch. 13:

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Art. 234 EC: (1) '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. (2) 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. (3) 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.'

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NB ECJ decisions under art 234 are referential: They are not a final ruling (the right to make one is reserved to national courts) and ECJ is NOT an appellate court. Original conception of relationship between ECJ and national courts was a 'horizontal' (i.e. they are separate but equal, performing different functions) and 'bilateral' (i.e. ECJ's ruling delivered to a particular court and available on request).In fact it's become more vertical (ECJ superior to national courts) and multilateral (treating ECJ references to a particular court as general precedents). It is for the ECJ to decide whether a body is a court or tribunal and hence whether the ECJ may answer the reference questions. This presents difficulties for things like arbitration panels. The duty in 234(3) is to ensure that EC law is applied consistently and prevent the adoption of national law that is inconsistent with that of member states. There are two theories about which bodies this duty covers: o Abstract Theory: Only bodies whose decisions are never subject to appeal o Concrete Theory: Any body whose decision is not subject to appeal in the particular case in question. This theory was impliedly endorsed in Da Costa v ENEL and affirmed in Lyckskog C-99/100 It is for the national courts to decide if art. 234 applies to a particular case. However if the question of law has already been answered by the court then the ECJ may just restate the substance of a former case (Da Costa). In CILFIT the ECJ held that the existence of a ruling on the question raised absolved a

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court of the requirement to refer to the ECJ under 234(3). ICC case 66/80 confirms that rulings of the ECJ, although addressed to a specific court, should be used by other national courts and relied on (rather than make reference) when the issue arises. The creation of precedent makes the relationship more multilateral and less bilateral. The 'acte clair' doctrine says that if a national court considers the issue so clear that no reference to the ECJ is required. See CILFIT for an elaboration on when the acte clair doctrine is appropriately applied. Mancini and Keeling see this as sensible: The ECJ is giving the national courts the power to do lawfully what they could otherwise do unlawfully anyway (by ignoring art.234) and subjecting it to certain conditions. This is part of the give and take relationship between ECJ and national courts. By contrast Arnull argues that the conditions for acte clair finding were really quite loose and that the English courts have used the doctrine to escape referring questions to the EC. There are two criteria needed to make a reference to the ECJ: The reference must be made by a court or tribunal (though the court can make a reference by its own motion rather than by that of the parties-see CILFIT); and reference must be necessary to enable the court or tribunal to give judgment. ECJ was initially very liberal about answering references: It would correct improperly framed references (see Schwarze C-16/65) and didn't worry about the reasons for which a reference was made nor the facts on which it was based (See Simmenthal). ECJ regards itself as having ultimate authority to decide whether a reference is warranted or not (See Foglia 1). This attitude, spelled out in Foglia 2, represents a more restrictive attitude to references. ECJ would not be a 'passive receptor'. There is debate on whether the court was right to take this step (see Bebr Vs Wyatt pp.478-488). Following this the ECJ will not take a case where the question was hypothetical; where the question was not relevant to the resolution of the substantive action in the national court; where the questions are not articulated clearly enough for the ECJ to give a meaningful response; and where the facts are insufficiently clear to be able to apply the relevant legal rules. HOWEVER it only refuses to give a ruling if the issue of EC law is manifestly inapplicable to the dispute (C-364/96 ICI). Art 234 gives the ECJ jurisdiction to rule on the interpretation of EC law, but NOT to apply it to a particular case. This distinguishes the ECJ-national court relationship from a federal system. This distinction is hard to follow given that references to the ECJ have to be detailed and require a specific response. The ECJ has furthermore been wary of the objection that to answer a reference would be to apply rather than interpret the relevant law. In fact the ECJ is usually willing to give v detailed answers e.g. in Marleasing. Problem of current system is that courts are overloaded with cases and this delays justice (especially answer of national court while waiting for a reference). Several options for reform: o Limiting the types of national court empowered to make a reference o Filtering mechanism based on the novelty, complexity or importance of question

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