How would you characterise
the relationship between
national courts and the ECJ
?
I
Article 177 EC and 35 TEU : a structure for formal relations
C - Similarities and differences
3 - Problems raised by Article 35 EU
D - Formal structure of the ECJ/
National courts relationship
2 - A court-to-court procedure
3 - A non-contentious procedure
4 - A procedure opened to certain opinions
E - The Creation of an EC judiciary
1 - The Court's interpretation of Article 177 EC :
ensuring uniformity of EC law
2 - The establishment of a Europe-wide court network
3 - Extension of this network : the definition of a
'court' and 'tribunal'
II Implication for lower national
courts : an increase in power
A - The new powers of lower
National Courts
1 - New powers vis-à-vis higher courts
2 - New powers vis-à-vis national governments : Using
ECJ's rulings as a sword or as a
shield
3 - The relative power of the national courts vis-à-vis
the ECJ
B - Why did Lower courts co-operate
? Formalist approaches
1 - The Formal Pull of Law - WEILER
2 - The Valve Effect of Article 177 EC - GOLUB
C - Why did lower courts co-operate
? Rational choice approaches
1 - Competition between courts - ALTER
2 - Actor interests -
MATTLI & SLAUTER
3 - Exchange theory - STONE SWEET & BRUNELL
D - Why did Lower courts co-operate
? Constructivist approach
1 - Critics of this notion of 'judicial empowerment'.
2 - Common judicial self-identification (constructivist
approach) : CHALMERS
III Implications for higher
national courts
A - Definition and traditional
competences
C - The attempt to limit ECJ's
influence
2 - Their using the reference procedure : " don't ask and
the ECJ can't tell' strategy.
3 - Higher Courts tried to stop lower courts from making
reference
IV The relationship from the ECJ' s
point of view
1 - The original weakness of the ECJ
2 - The ECJ became a political actor over time
3 - Threatening national sovereignties
4 - National courts are the linchpins of the ECJ's
authority
5 - Article 177 EC as a law making dynamics led by
national courts and private litigants
B - The interpretative powers of
the ECJ under Article 177 EC
2 - General Principles of law and Fundamental rights
3 - Provisions of national law that refers to EC law
C - The power of judicial review of
the ECJ
1 - The Court partially empowered national courts with judicial review of EC acts
2 - The Court' power to review national courts' decisions
to refer and to refuse them
· Significance of Foglia v Novello, 1981
3 - The ECJ induces national courts not to refer
V - the Reaction of National Actors
A - The Reaction of National
Politicians
2 - The ECJ's judicial strategy
4 - National executive and legislative powers tried to
stop the process
6 - The reaction of MS governments at Amsterdam
B - Reaction of Private litigants :
using Article 177 to be law initiators
VI - Reforming the EC judicial
system
A - Weakness in the current
Judicial Structure
B - Two structural reform proposals
1 - A system of
Regional Courts
2 - A system of Specialised Courts
C - Reforms proposal for a more
efficient case management
The discourse of constitutionalism developed by the Court since Van Gend en Loos, has implication not just for the relationship between the EC and the MS. It has also infra-societal implications.
It empowered natural and legal persons who can now assert protection of the rights granted to them by EC law. The others beneficiaries are both the ECJ and national courts. This relationship should be seen as one of the central axes within the European Union.
Karen ALTER analyses "the political alliance between the ECJ and the national judiciaries, which has re-defined national sovereignties ".
Throughout this paper we will have to bear in mind an important distinction between higher and lower national courts (depending on their decision is subject to appeal)
The formal contacts between the Court and the national courts of the MS have traditionally been modulated in EC law through one Article, Article 177 EC.
Article 177 EC. The Court of Justice shall have jurisdiction to give preliminary ruling
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
When 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 judgement, request
the Court of Justice to give a ruling thereon.
When any such question is raised in a case pending before a court
or tribunal of a MS against whose decision there is no judicial remedy under
national law, that court or tribunal shall bring the matter before
the Court of Justice.
No provision existed, meanwhile, for national courts to refer matters which fell within the other two pillars, JHA and CFSP. The Treaty of Amsterdam alters this in relation to JHA by allowing national governments to 'opt-in' their national judiciaries.
Article 35 EU (approximately)
1.
The
Court of Justice of the European Community shall have jurisdiction (...) to
give preliminary ruling on the validity and interpretation of framework
decisions and decisions, on the interpretation of conventions established under
this Title [co-operation in the field of justice and home affair]
2.
By
a declaration made at [any time], any MS shall be able to accept a jurisdiction
of the Court of Justice to give preliminary ruling as specified in paragraph 1.
3.
Where
a MS has made a declaration pursuant to paragraph 2 of this Article [ any court
or tribunal of this MS (whether its decision is subject to a right of appeal
under national law or not) may request a preliminary ruling if it consider it
as necessary.
4.
Any
MS (...) shall be entitled to submit statements of case or written observations
to the Court.
5. The Court of Justice shall have no jurisdiction to review the validity or proportionality of MS actions concerning the maintenance of law and order and the safeguarding of internal security.
Article 177 EC and 35 TEU confer two types of power upon the Court of Justice.
1) A power to interpret
2) A power to review acts of the EC institutions
The principal distinction between the two Article is the optional nature of the latter, which leaves it to the national government to determine whether its courts, and if so which courts, should be able to refer matter on JHA to the Court.
This discretion seems to protect neither national autonomy nor the Union interest.
Judgements of the Court of Justice will presumably bind all MS, including those which have not made a declaration. MS can opt out of the system of preliminary ruling, but cannot opt out of the Court's jurisdiction.
From a Union perspective, however, this imbalance is unsatisfactory as it will result in the law not being uniformly applied, as some courts will be able to have resort to the expertise of the ECJ whereas other will not.
The manner in which the Court interprets Article 35 TEU will have to await the entry on into force of the Treaty of Amsterdam. It is however probable that the Court will apply its powers of interpretation
The procedure is based upon a division of duties.
1) it is for the Court of Justice to give a ruling on the point(s) of EC law in question
2) it is the national courts which are responsible for questions of fact and dispute resolution
The procedure is a court-to-court one with national courts acting as guardians to the gateway to the Court. Private parties have therefore no direct access nor can they appeal decisions of the national courts to the Court of Justice.
The Court has thus characterised Article 177 EC as a "non-contentious procedure excluding any initiative of the parties, who are merely invited to be heard in the course of this procedure.
The parties to the dispute are not wholly excluded from the procedure, as they may submit written observations to the Court. In this they may be joined by the Council, the Parliament, or any other Member States. In addition if any party insists there will be oral hearing (15-30mn)
The presence of Article 177 EC was used by the Court in Van Gend en Loos as a reason for finding the EC legal order to have sovereign qualities.
The Court has located the function of Article 177 by reference to the constitutional qualities of the EC Treaty. Its function is seen, in particular, as integral to the preservation of the autonomous nature of the EC legal order. In a 1974 case, the Court stated :
" Article 177 has the object
if ensuring that in all circumstances Community
law is the same in all
States of the Community"
The establishment of this direct link between the Court of Justice and all courts and tribunal in the European Union sidelines existing national judicial hierarchy and create a flat court structure whereby all courts are treated equally (at least for the purpose of making references).
"Article 177 enables every national court or tribunal without distinction to refer a case to the court for a preliminary ruling when it consider that a decision on the question is necessary to enable it to give judgement. It makes available to the national judges a means of eliminating difficulties "
The assertion that it is important for the uniformity of EC law that all courts be able to refer matters to the Court of Justice throws up a further question : what is to be considered as a court or a tribunal ?
Indeed, throughout the Union, a variety of professional, regulatory and arbitral bodies, which are not formally designated as courts under national law, adjudicate upon EC rights. Given the diversity of national approaches upon this matter, the Court had to produce a unified definition. This is what happened in the case Broeckmeulen.
Case BroeckMeulen, 1982
In this case, the Court took the decision to disapply national definition of a court or tribunal. This was inspired by the desire to ensure uniform application of EC law. In doing so, it provided criteria :
1) the body must have a public status, i.e. it must act under a degree of government supervision.
2) Secondly, the Court will look at the body's mode of operation. A number of features are important :
- the body must be independent
- have a permanent existence
- a biding jurisdiction
- rules of adversarial procedure
- must apply the rule of law
Despite these limitations, we can still talk of an organisational revolution. The Court has engineered a structure, a Europe wide network, whereby a large number of bodies have the opportunity to refer matters, over a wide variety of topics.
Þ this has created a powerful dynamic that pushed forward the development of EC law.
ALTER, The European Court's Political Power, 1996
While EC law supremacy posed a threat to the influence and authority of high courts, lower courts found few costs and numerous benefits in making their own referrals to the ECJ and in applying EC law. It bolstered the legal power and influence of the lower courts.
1) It allowed lower courts to circumvent the restrictive jurisprudence of higher courts.
2) To re-open legal debates which had been closed
3) And therefore try for legal outcomes of their preference
4) Having a ECJ decision also magnified the lower-court decisions
5) Enable lower courts to contribute to the development of national law
6) Gives national courts a power of judicial review
7) Enables courts to promote certain policies (i.e. A political power)
ALTER explains the relationship between lower national court, the ECJ and higher national courts, by using the metaphor of children/parents relationship.
" When a lower court did not like what it thought one parent (a higher national court) would say, or it did not agree with what one parent said, it would ask the other parent (the ECJ). Having the other parent approval decreased the likelihood of sanction for challenging legal precedence or government policy.
If the lower court, however, did not think that it would like what the other parent might say, it could follow the 'don't ask and the ECJ can't tell' policy and not make referral ".
GOLUB, The Politics of Judicial Discretion : Rethinking the Interaction between National Courts and the ECJ, 1996.
The opportunity to refer to the ECJ basically expands the menu if options available to national judges. Provided that the national judge has some idea how the ECJ might answer the question referred, references can be used in two different ways :
1) ECJ rulings can be used as a sword to force change on a reluctant government. As it is known, the Court has used its influence to foster integration (constant pro-integration bias, willingness to pursue its own political agenda).
2)
Alternatively, national judges can seek to shield a policy from unfavourable
ECJ ruling by not referring the matter at stake.
N.B : The ECJ can be starved of references. If national judges employ their discretion not to refer, a sizeable reduction in the Court's sole means of influence and control.
WEILER, Journey to an unknown destination : a retrospective and a prospective of the ECJ in the Arena of Political Integration, 1993
GOLUB, The politics of Judicial Discretion : Rethinking the interaction between National Courts and the ECJ, 1996
Karen ALTER, The European Court's Political Power, 1996
· Lower courts created opportunities for the ECJ to expand its jurisdiction and jurisprudence.
· Lower courts were the motor of EC legal integration into the national order, and legal expansion through their referrals to the ECJ.
Why should national courts, which after all are creatures of the national constitutional settlement and are bred upon a culture of self-restraint, engage actively in a process which can destabilise governments and their own judicial hierarchy.
The inter-court competition model (ALTER) posits that courts which already enjoy substantial prestige and power relative to other courts are likely to object to the extension or even transfer of that power.
Þ Courts that already
exercise the power of judicial review are likely to perceive the 'parallel'
exercise of that power by the ECJ as a threat.
Þ Conclusion : higher and lower national courts reject or accept EC law for the same reason : to secure or keep judicial power.
One school of thought, the rational choice school, believes that the reason lies in judicial empowerment. National courts have engaged in such a process because it has enhanced their own position within the existing political settlement.
Such analysis is prominent in the reasoning of GOLUB and ALTER. It was first developed by MATTLI & SLAUGHTER.
MATTLI & SLAUGHTER, Constructing the EC Legal System :The role of Individual Litigants and National Courts, 1995.
The authors note three main reasons why national courts co-operated so warmly with the ECJ.
1) First the power of judicial review to establish the validity of national legislation. Some national courts, notably constitutional courts, already exercise this power ; other gained it in partnership with the ECJ
2) Second is the pursuit of institutional power and prestige. We draw here on the work of Karen ALTER who has the developed the concept of an 'inter-court competition'.
3) Third is the power to promote certain substantive policies through the law.
The notion of judicial empowerment obscures a large number of other factors which might influence national courts :
- national legal cultures
- differing constitutional relations with other arms of government
- notions of judicial restraint
- shared judicial identity and shared commitment to legal reasoning
This last two factors are of particular importance.
CHALMERS, Judicial Preferences and the Community Legal Order, 1997
Thesis : acceptance of Community law has thus become linked with judicial self-identification
Whilst unprovable, it is possible that a shared judicial identity has fostered a receptiveness to the Court's doctrine. This shared identity has also pushed national courts to look sideways at the actions of their counterparts in the other States.
The argument can be expressed in reverse terms. Where there is almost universal de facto acceptance of Community law across the EU, it would take a brave court to fly in the face of this consensus.
CHALMERS finds in the ECJ legal discourse an 'appeal to a common consciousness'.
Legal commentator sometimes use the terminology of war to describe the relationship between the ECJ and higher national courts.
Definition : high courts are where the jurisdictional authority over substantive, constitutional, or procedural legal interpretation is not subject to appeal.
As courts of last resort, high courts traditionally enjoyed a position of dominance over the development of national law. They were the final arbiters of national law.
The challenge to ECJ's authority were often given their strongest voice by higher national courts. This is not surprising when one consider that the higher courts had the most to lose by the extension of the ECJ jurisdictional authority.
Higher national courts were also concerned about ceding interpretative authority to the ECJ. Not wanting to admit that they were looking out for their own institutional interests, high courts cloaked their concern in legalistic arguments about :
- respecting the constitution
- legal certainty
- respecting parliamentary prerogatives
The concerns of these higher courts are manifest their jurisprudence regarding EC law supremacy, here high courts :
- refused the authority of the ECJ
- reject ECJ legal argument
- try to keep the lower courts to make referral to the ECJ
The high courts' defiance of the ECJ, is also manifest in their referral patterns to the ECJ. The high courts :
-
either do not refer anything. Even though the high
courts, as courts of last instance, must refer question of EC law to the ECJ, the Constitutional Courts in Germany, Italy,
Belgium and France have never made a referral to the ECJ. These courts use
the acte
claire doctrine.
- or refer a few and very technical questions. Other national high courts have sent relatively few referrals to the ECJ compared to the number of referral coming from lower courts. More important than the number, the type of referrals : narrow technical question.
This way, the courts avoid referring and reserve for themselves difficult questions about the relationship of European law to national law. This is a sort of " don't ask and the ECJ can't tell' strategy.
· In Britain the Court of Appeal of the House of Lords developed narrow guidelines about when a lower-court referral to the ECJ was justified.
· The Italian constitutional court said that it alone could decide if EC law was supreme to subsequent national laws
· Sometimes high courts even squashes lower-court decisions to refer a case to the ECJ.
Þ lower courts often simply ignored the rulings of the higher courts and made referrals anyway
Because so many lower courts were following the ECJ rather than their own high courts, opposition to the ECJ jurisprudence lost its influence and effectiveness. National high courts repositioned themselves to the new reality, reversing their jurisprudence.
It became clear that the
higher courts have failed in their efforts to stem the tide of EC law. As a
French Commissariat du Gouvernement argued in the famous Nicolo case : "The era of the unconditional supremacy of internal
law is now over. Entire fields of our law now very largely originate from
international legislation".
But they did not formally accepted the legal reasoning of the ECJ leading to supremacy. This leaves open the possibility of future conflicts.
Karen ALTER, 1996, The European Court's political power
The ECJ and the legal system designed by the Treaty of Rome , by all accounts started out quite weak. The ECJ was a marginal political actor.
The decision to create a weak enforcement mechanism must be seen as a political choice. Indeed, by removing the sanctioning powers of the Court and the Commission, politicians actually weakened the enforcement mechanism for the Treaty of Rome, compared to what it had been in the ECSC. Stronger enforcement mechanisms were rejected because they would have infringed on national sovereignty.
But this has changed. The European Court of Justice has emerged as one of the most powerful political institution in the EU, and the mot influential international court in existence. It has the authority to declare as illegal national law and policy which conflict with EC law. Since the 1970s the ECJ has increasingly made decisions with a significant political and material impact. For many areas of European and national policy, knowing the position of the ECJ is as important as knowing the position of a member state.
This could never have happened without the strong support of national judiciaries.
The ECJ's supremacy doctrine raised fundamental issues of political authority. The doctrine touched on the limits of parliamentary sovereignty, the sanctity of national constitutions.
For the French and British applying EC law supremacy went against the very essence of their conception of democracy.
The Germans feared that supremacy could undermine a national court's ability to uphold the German constitution and democracy.
Simply declaring that EC law had direct effect and was supreme to EC law was not enough to create the rule of law in Europe. To put it bluntly the ECJ can say whatever it wants, the real question is why anyone should heed it.
Without the good will of national courts, the ECJ could not enforce its judgement
The preliminary ruling procedure was critical in the establishment of its authority. With individual raising cases to the ECJ, the ECJ has more opportunities to rule on national law and expand the scope of its jurisprudence.
The Court has construed its interpretative powers under Article 177 widely. It will give a ruling on anything which forms part of the EC legal order, even if, strictly speaking, it is neither a Treaty provision or a piece of secondary legislation. The Court hold in particular that it could rule upon :
There are some International agreements, such as the GATT, that were concluded by the MS and came into force before the Community's existence. However, the Court has ruled that the Community has succeeded to them and that they therefore form part f the EC legal order.
It therefore considers it can give preliminary ruling upon their interpretation (to ensure the uniform interpretation of the EC legal order).
Similarly, it could be argued that the Court has no jurisdiction to give preliminary ruling upon general principles of law or fundamental rights, as a binding catalogue of these rights does not appear in any EC Treaty provision or piece of secondary legislation.
Yet the Court has been willing to accept references on these.
Whilst the Court has no power to give rulings on provision of national law, it will give rulings on the latter wherever the latter refers to the content of provision of EC law. This is once more to ensure uniform interpretation of EC law
One of the functions of the preliminary reference system is to enable challenge of acts of the EC institutions. This can be most easily done by an individual challenging an implementing act of the national administration.
The significance of Article 177 as a route for judicial review of acts of the EC institutions was enhanced by two developments in the late 1980s :
- in Rau, 1987, the Court hold that Article 177 EC enabled national court to review legality of EC institutions acts, independently if any other Treaty provision
- in Fotofrost, 1987, the Court hold that national courts could not declare any EC act invalid.
Þ as a result f these two judgement, Article 177 EC came to be used as a channel for national courts to pass matters on to be reviewed by the ECJ.
· ECJ's influence vitally relies on national courts
· Historically, national courts have co-operated
Article 177 EC was traditionally bases upon a system of non hierarchical co-operation between national courts and the ECJ.
This has been notably transformed by the emergence of the Court's power to docket-control. Docket-control can take two forms 1) either refusing to accept reference 2) or discouraging national courts from referring matters.
There can be a variety of rationales for the development of Docket -Control by the ECJ:
- to reduce the backlog
- to prevent vexatious litigation, according to the 'political question' doctrine (C.F. RASSMUSSEN)
- to protect the Court's 'judicial function' (refusing to perform a speculative task or to give purely advisory opinions)
- or even ... to precisely introduce a hierarchical relationship
The debate surrounding the Court's power to refuse to adjudicate on matters of EC law which had been referred to it by national courts, emerged at the end of the 1970s.
A contract was made for Mattheus, a German national, to complete a marketing study for Doego, of certain Spanish and Portuguese agricultural products. The contract contained a provision that Doego could terminate the contract should accession ever prove impracticable.
Following a contractual dispute, the question was referred to the Court in what circumstances Spanish and Portuguese accession would prove impracticable.
The Court refused to rule on the matter :
- on the ground that conditions for accession would be determined by MS later on. The Court therefore saw itself being asked to perform a speculative task which was not consistent with its judicial function.
- RASMUSSEN saw this judgement as the development of a 'political question' doctrine, that is a recognition by the Court that certain matters were so sensitive that they fell outside the domain of the Court.
This is an important case. Foglia sought to recover the French taxes from his commercial partner Novello, who refused on the ground they were levied contrary to EC law. The case was brought before an Italian court, which referred the matter to the ECJ.
The Court refused to deal with the matter, and implied that the reference should never have been made, essentially on the twofold ground that :
- there were no genuine dispute between the private parties (they are in agreement as to the result to be attained, namely a ruling that the French tax system is invalid)
-
the matter was brought
before an Italian court (the ECJ pejoratively speaks of an 'expedient')
· Significance of Foglia v Novello, 1981
By implying that the reference should never have been made, the Court :
- cast aspersions on the Italian judge's competence
- was asserting a power to review how national courts carried out their task of referral Þ transgressed the traditional non-hierarchical relationship, between the ECJ and national courts
- transgressed the hitherto clear cut division of duties between the national courts and the ECJ. For an enquiry into the existence of a 'genuine dispute' by the ECJ would necessarily require it to examine the factual background.
The depth of the review has become increasingly rigorous. The Court will refuse jurisdiction whenever the national court fails to define sufficiently the factual and legal context to the dispute. The number f insufficiently defined references has led the ECJ to issue note for guidance on the matter (including : statement of the facts, exposition of the national lawn statement of the reasons for referring, summary of the argument of the parties, copies of essential documents).
The Court has also sought to induce national courts to decide more cases themselves. A difficulty it faces is that the last paragraph of Article 177 EC required national courts against whose decisions there is no remedy under national law to refer.
The Court has sought to curb the effects of this paragraph through the doctrines of :
-
acte éclairé : a
court does not need to refer if a materially identical matter has already been
decided by the Court
- acte clair : a court does not need to refer if the provision in question is so clear that there is no reasonable doubt about its application
The reference procedure is also an agenda-setting process. As more than 60% of the cases come via Article 177 EC, the procedure acts as the principal dynamo which propels the doctrine development of EC law. Two kinds of actors are here important : litigants and national courts. Let us try to understand their motivation.
The idea that national courts would become enforcers of EC law over national was unforeseen by the negotiators and politicians in the 1950s and the 1960s. The Court was created part of the ECSC to ensure that the supra-national institutions did not exceeded their prerogatives, not to police member-states compliance with EC law.
Why politicians did not react more vigorously to the ECJ's declaration of EC law supremacy ? The main reason is the ECJ's judicial strategy.
The ECJ followed the well known judicial practice of expanding its jurisdictional authority by establishing legal principles, but not applying the principles to the cases at hand. A famous example is the case Costa v Enel, in which the ECJ declared the supremacy of EC law but found that the Italian law in question did not violated EC law.
More generally the ECJ avoided decisions which could move politician to action. The ECJ palled on the field of principles ; politicians care more about the material impact of decisions.
There is a debate upon whether national governments wanted or not this increase in ECJ's power. Did governments in fact preferred the transformation of the EC legal system to the system they had designed ?
Þ Geoffrey GARRET, The politics of legal integration in the EU, 1995
" From a rational government perspective, it must be the case that the existing legal order furthers and reflects the interests of national governments ".
Þ ALTER, Most evidence indicate that politicians did not support the transformation of the legal system. As WEILER pointed out, the largest advances in EC legal doctrine occurred at the same time that MS were scaling down the supra-national pretensions of the Treaty (e.g. The supremacy of EC law -1964- was declared shortly before the Luxembourg compromise)
There is much evidence that politicians did try to sanction judicial activism. Ministries and legislature have sometimes ordered not to follow ECJ decisions (France, Germany).
There are two reasons why national attempts to sanction the judiciary for following unwanted ECJ decisions, failed.
Þ the first was that many of the attempts to sanction the judiciary politically were seen as unconstitutional
Þ the executive worked to quell domestic disputes over EC law.
At the EU level, no reform proposal of the legal system has ever been agreed on. Simply because of the 'joint decision trap' (Scharpf).No agreement, notably because the small states have been big supporters of the ECJ (because before the court the power differential between MS is equalised).
SCHARPF, The joint decision trap,
1988
A 'joint decision trap' is an institutional barrier to policy-reform. It appears when 1) the decision making of the central government is directly dependant upon the agreement of constituent parts 2) when the agreement must be unanimous or nearly unanimous 3) when the default outcome is the status quo policy.
National governments opposition to the manner in which lower courts have exercised their discretion manifested itself in three ways at Amsterdam, especially as regard JHA and Free Movements matters :
1) MS are given the choice between accepting a process whereby all courts may refer and accepting one where only courts of last resort may refer (in the field of JHA)
2) Only courts of last resort can refer questions on the new Title on Visas, Asylum and Immigration and Other Policies Related to Free Movement of Persons
3) Finally national courts have been robbed of their monopoly to refer matters to the Court of Justice in the new Title on Visas, Asylum, Immigration and Other Policies Related to Free Movement. This provision has been settled in order to ensure an extreme legal certainty in so touchy matters.
4)
Private litigants took opportunity of the close relationship between lower national courts and the ECJ. Using Article 177 EC they often tried to obtain change in national law or government's policy.
GOLUB, The Quantitative Basis of Preliminary References to the ECJ, ?
GOLUB has examined the variables which determine the number if references coming from differing MS's courts. He suggested that there is a link between :
- on the one hand, the openness of a MS economy
- and the number of references which flow from that State's courts
Þ the more open the economy, the greater the number of references which stem from that State's courts.
GOLUB's empirical evidences confirm the work of others who have argued that pressure group and corporate actors are increasingly using the preliminary reference procedure as part of litigation strategies to bring political change through law. Such strategies are normally carried out by 'repeat players'.
Definition : actors, usually well-resourced, who will engage in a series of cases with the ambition of bringing about an eventual change in policy rather than of winning any single dispute.
Article 177 provides a fertile arena for such strategies for a number of reasons :
- it offers the 'repeat actor' the possibility of trumping national law by invoking EC law
- the 'repeat actor' is able to exploit the relationship between the national court and the ECJ.
A lively debate has developed about the structure of the judicial architecture of the EU. There is a fair degree of consensus that some parts of the current system are not working well.
The point decried by almost every body is the backlog generated by the extremely centralised nature of the system. The Court itself acknowledged this problem.
At the end of 1994 the average length of proceedings varied between 18 and 21 months. The CFI has failed to reduce the backlog, but created another logjam. At the end of 1994 the average length of proceedings before it was 23 months.
Provides incentive for national courts no to refer matters.
The backlog is a mere result of the considerable workload placed on the shoulders of the ECJ and CFI. Even not taking the backlog into account, this workload is a problem in itself.
Indeed, it has been questioned whether the legal community of the EU can digest and consider the implications of such a large number of judgements. In 1994, the ECJ gave 188 judgements and the CFI 70 judgements.
The two courts have to adjudicate upon a tremendous range of matters. The problem is that most lawyers are generalists and do not have the familiarity, for instance, with Economics and Environmental Science.
The Court's reputation has already been criticised for the paucity of its economic reasoning in the field of competition law.
Þ the CFI suggested that specialised chambers should be set up within the Court.
The two courts are experiencing a crisis of confidence among the citizens of Europe, and certainly do not enjoy the public awareness that national courts enjoy. A recent survey showed very small public awareness over what the ECJ is doing.
The backlog increases the cost of access to the ECJ Þ seems even more remote.
Moreover, the ECJ is being seen as synonymous of EC law, and as seeking to secure more power by promoting it.
EC law is seen as an external intrusive pressure, with the ECJ being seen as a personification of that pressure.
·
Proposal
In 1990 two distinguished academics, JACQUé and WEILER, suggested a reform, by :
1) limiting access to the ECJ to those cases where the defendant was a MS, the applicant was either a Community institution or a MS, or a reference was sent by the highest national court
2) in addition, four Community Regional Courts would be established. All other matters currently considered by the ECJ of CFI should be transferred to these courts.
3) there should be the possibility of an appeal from these courts to the ECJ
·
Problems
The CFI issued a "Reflection on the future development of the Community Judicial System".
This document shows concerns over the likeliness that a system of regional courts endangers the ultimate principle of uniform interpretation of Community law.
The second proposal is that a series of specialised courts should be developed. There seems to be a divergence of views on this point between the ECJ and the CFI.
The ECJ see this possibility as desirable in the long term. On the other hand, the CFI considers that it would jeopardise the unity of the Community judicature and of its law case.
A number of solution have been suggested to handle the case load more efficiently :
1) to increase the jurisdiction of the CFI
2) expansion of the translation services of the Courts
3) systematic training of national judges in EC law, to try to reduce the number of references
4) national courts could submit a draft answer with their references
5) to allow national courts to certify certain question as urgent Þ would serve to prioritise the backlog.
The relationship between the ECJ and lower national courts, especially under Article 177 EC, is essential to understand the EC legal integration. It has been the key dynamo which fostered uniform and wide application of EC law.
This relationship fosters the power of both the ECJ and lower national courts. It is therefore on the basis on a mutual interest, reinforced by a shared judicial identity, that they co-operated so much.