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'The European Court of Justice played a decisive role in the transformation of the European legal system by declaring the direct effect and supremacy of European Law. But the linchpins of the European legal system are the national courts of the member...

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Introduction

'The European Court of Justice played a decisive role in the transformation of the European legal system by declaring the direct effect and supremacy of European Law. But the linchpins of the European legal system are the national courts of the member states. National court references provide the ECJ with opportunities to expand the reach and scope of EC law, opportunities that would not exist if the ECJ had to rely on member states or the Commission to raise infringement suits. In applying European law supremacy, national judges have made European law enforceable in the national realm' In the light of this statement critically appraise the respective roles of the ECJ and the national courts, evaluating the jurisprudence of the ECJ. In order to overview this statement it is important that the development of the supremacy of Community law and the direct effect of this should be identified. It is also complementary to this area that the preliminary rulings procedure and general principles should also be made reference to. The preliminary rulings procedure is known as the cornerstone of European Community Law and is invoked under Article 234 E.C (appendix 1). Under this procedure the Court of Justice has the task of ensuring the uniform interpretation and correct application of European Community law by the courts in the member states. This task is the most important and influential task that the Court of Justice has to undertake, hearing cases which it does not decide upon, which arise in legal systems under which it has no jurisdiction; concerning the validity of legal rules ...read more.

Middle

The ECJ ordered the UK to "temporarily suspend the Act". It is these cases inter alia that formed the fundamental constitutional8 and substantive principles of the Community legal order; and although the Court of Justice is not bound by precedence it is clear through evidence9 that previous cases have been quoted. Judges in member states are also informed that they must look within previous rulings of the Court of Justice before applying for a preliminary reference. Although the Court of Justice has established the doctrine of supremacy and direct effect of Community law it still has to make way for general principles to be taken into account. The term 'general principles' is used to signify fundamental unwritten principles of law which underline the Community law structure. Such principles are developed by the Court of Justice primarily from the laws of the Member States and used by it to supplement and refine the Treaties. They can be said to pre-exist written law in the provision of the Treaty. 10Steiner and woods suggest that the court has recognised the following as general principles of Community Law: * Equal treatment or non-discrimination * Proportionality * Legal certainty * Protection of legitimate expectations fundamental rights of defence Due to the function of general principles it is quite probable that, even without the existence of any specific Treaty provisions, the Court of Justice would apply general principles of law. Nonetheless, a justification for general principles as a source of law was also provided by the Court of Justice by reference to two Articles of the E.C Treaty, namely ...read more.

Conclusion

The Court of Justice has established the element of supremacy and of direct effect within its judicial creativity; it has also gained knowledge from member states of policy implications and infringements through the preliminary reference procedure. This would not have been so easy if member states (and sometimes individuals) did not have this procedure. Thus it is apparent that the member states have taken on an informative role under Article 234. It is also apparent, given the evidence, that member states also act as 'players' under the very same procedure, using persuasion on an intellectual level to influence the decision making process and fill in the gaps of the Treaties. 1 J. Steiner and L. Woods, Textbook on EC Law, 8th Edition, (2003) Oxford University Press pp548 2 Extract taken from Article 234 EC (see appendix 1) 3 (case 26/62) [1963] ECR 1 4 (case 60/64) [1964] ECR 585 5 (Case26/62) [1963] ECR 1 6 (case 106/77) [1978[ ECR 629 7 (case 213/89) [1990] ECR I-2433 8 8 E.g. cases 26/62 Van Gend en Loos [1963] ECR 1, 6/64 Costa v ENEL [1964] ECR 585, 36/76 Simmenthal [1976] ECR 1871, 213/89 Factortame I [1990] ECR 2433, 221/89 Factortame II [1991] ECR 3905 9 see judgement of Costa v ENEL (case 60/64) [1964] ECR 585 10 Steiner, J, and Woods, L, Textbook on EC Law, Oxford University Press, 8th Ed, 2003 11(Case 29/69) [1969] E.C.R 419 12 (Case 11/70) [1970] E.C.R 1125 13 (case 4/73) [1974] E.C.R 491 14 Internationale Handlesgellschafe (Case 11/70) [1970] E.C.R 1125 15 (Case 63/83) [1984] E.C.R 2689 16 (case 43/75) (Defrenne II) [1976] E.C.R 455 Cerys Lawton 034190511 Page 1 ...read more.

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