The scenario presented involves an Irish national, Gerard, who had migrated to the UK unaware of a new legislation which posed an obligation on him to register with the UK Border Agency upon arrival, because he was a non-UK national. Gerard appealed the d

There are certain steps the Commission must take to enforce EU law and this incorporates proceedings starting with an informal notification to the state, negotitating the alleged failure. If no conclusion was deduced from this then formal letters to the Member State, “inviting them to submit its observations” would be sent, stating any charges against them. After receiving the observations from the state the Commission must issue a reasoned opinion requesting the state to take action to end any breaches within a time period. If the state decides not to co operate and respond to the Commissions reasoned opinion then the proceedings are accelerated to the judicial stage where the state must come before the ECJ as observed in Commission v Italy (case 24/68).

With relation to Gerards case, if the Commission was to take try and enforce EU law on the UK, they would most likely be successful in doing so as the law which the UK have scrutinised Gerard under is one that infringes upon EC rights. In Heylens (case 222/86) the ECJ pronounced that “since free access to employment is a fundamental right which the Treaty confers individually on each worker in the Community, the existence of a remedy of judicial nature against any decision if a national authority refusing the benefit of that right would be essential”. Gerard harmonises with the criteria of a worker and being an Irish National he is a worker of the Community and so the UK is failing to ‘fulfil an obligation under this Treaty’ Article 226 (ex 169) EC; post Lisbon, Article 258 TFEU), therefore the Commisson is under authority to empower an enforcement of action upon the UK.

If the Commission were successful, there are various remedies that would be available.

The UK would not be likely to appear at the ECJ as “the Commission states in 2007 that 85 per cent of cases are resolved without the need to issue their reasoned opinion”. However, if the case was to reach ECJ, then they would be called upon not just to address the breach but also to explain the law for the benefit of all Member States. Remedies that would be available “would not provide redress to individuals”.

The Commission is not always likely to bring the Member State before the ECJ, however, if this does happen and “Court of Justice finds that the Member State concerned has not complied with its judgement, it may impose a lump sum or penalty payment on it”. It must be re iterated that the size  and nature of the penalty is at the Court’s discretion due to the nature of the supremacy of EC law. Fines can incur as an annual payment such as in Commission v Spain (case C-92/96)or imposition of a daily fine multiplied by the number of days the infringement continued.

As implied previously, the Commission’s action against the Member State does “not provide redress to individuals” and it is the individuals role to retrieve this from the national institutions and their unions. Gerard’s matter soon came before the Asylum and Immigration Tribunal which is the national authority before which such matters of deportation appeals take place. In the tribunal it was argued that the law was justified on the basis of public security and this argument was accepted by the tribunal and Gerard was refused any further referrals to the High Court and the ECJ. However, the outcome of the tribunal did not provide full justice to Gerard and was not in conformity with EC law practices. Article 39 (3) EC provides that the right to prevent movement of persons within the Community can be restricted “on grounds of public policy, public security or public health”. These grounds can only be utilised as a defence if the threat is serious and sufficient enough as seen in Rutlili v Minister for the Interior (case 36/75). Gerard does not pose a genuine threat so these grounds are now lack adequacy.

A preliminary ruling is whereby a reference to the ECJ is made by national courts to give a view on the point of EC law and once this is received, the decision is finalised within the national court.  The preliminary ruling acts a final binding factor to making judgement upon a case. The tribunal or courts referring to the ECJ achieves preliminary ruling. In Gerard’s case, he was refused both leave to appeal to the High Court and ECJ and so no preliminary ruling would have been launched.

There are two interpretations whether the Asylum and Immigration Tribunal was in due right to refer the ECJ. Article 234(1) provides that for clarity upon “the validity and interpretation of acts of the institutions of the Community” the ECJ be resorted to. It also includes that they must only request the Court of Justice to give a ruling “if it considers that a decision on the question is necessary to enable it to give judgement” or if “there is no judicial remedy under national law”.

Article 243 (3) later affirms that “in a case pending before a tribunal or court of a Member State, against whose decision there is no judicial remedy under national law, that court or tribunal shall bring the matter before Court of Justice”. This illuminates the wrongful conduct of the tribunal with a lack of referral to the ECJ to prescribe their legal opinion, as Gerard’s case is a matter of national law breaching Community law. The case should have been referred to the ECJ, as there was no internal remedy for Gerard.

Conversely, it must be sighted that Gerard requested an appeal for leave to the High Court, and this High court is supreme against the tribunal court. In light of the ruling in Lyckeshog (case C-99/00), it was settled that “where leave depends on permission from a superior ‘final’ court, that latter court is obliged to grant the requested leave and make reference to the ECJ when a question of EC law arises”. This illustrates that leave to the High Court should not have been refused and that it would have been the High Court’s responsibility to refer the case to ECJ, as they would have discovered the case “raises a question of Community Law such that a ruling from the ECJ ‘is necessary to enable it to give judgment’”.  Therefore, in a sense, the Asylum and Immigration tribunal was entitled to proceed without referring to the ECJ. In addition, in Dorsch Consult (case C-54/96) it held that “it is for the legal system of each Member State to determine which court or tribunal has jurisdiction to hear disputes involving individual rights derived from the Community Law”. The conditions laid down from this case, confirm that the tribunal did not need to refer.            

It can be determined that the tribunal was at fault for firstly not allowing leave to the High Court and secondly not referring to the ECJ as soon as the matter came before them. The national legal system required the matter to be referred to the ECJ via either the tribunal or the superior court but it was not mandatory for the tribunal to refer.  

Gerard’s basic substantive rights have been denied to him with his right to work in the UK and his right to a proper court case under national and Community law being declined. The supremacy of EC laws allows Gerard to receive remedies against both the action and inaction of the Member State. It was Francovich v Italy (cases C-6 and 9/90) that led to the development of conditions that must be met if a State was liable to compensate individuals for any damage incurred through the State failing to implement EC directives: “(a) The directive involved rights conferred on individuals (b) The content of those rights could be identified on the basis of the provisions of the directive and (c) There was a causal link between the state’s failure and the damage suffered by the persons affected”. The ECJ’s ruling over Brassier du Pecheur (case C-46 and 48/93) held that “the principle of state liability is not confined with failure to implement EC directives; rather, all domestic acts and omissions, legislative, executive, and judicial, in breach of Community law can give rise to liability”.  Both these cases, especially the latter, are significant in Gerard’s case to receive a remedy, which would be in the form of state liability. Gerard, will also be able to appeal for remedy on the basis that post his tribunal, a similar case in Italy was referred to the ECJ and a preliminary ruling was enacted. This shows a lack of uniformity of Community law between Member States. He must also make visible that the breach of law by the state was “sufficiently serious” and he can do this successfully as the breach prevented him from being able to work lawfully and the breach may have placed financial strains upon him. However, even if he did, he would not be able to receive financial compensation under EC law.  It can also be said that under the principle of direct effect, Gerard is entitled to a remedy as direct effect ensures that EC law is applied “even though Member States have failed…to bring national law and practice into line with Community law”.  

It can be gathered that Gerard became a victim of an unjust law and was then victimised further with the erroneous demeanour of the national courts and tribunals. Gerard’s solution lies within the EU law as the supremacy of its Treaties overrules the national law of Member States. It is duty of the relevant institution of the EC, the European Commission, to investigate whether a breach has taken place and on what grounds can charges be placed on the Member State. However, it is essential to note that the Commission cannot be compelled to take action to provide a form of redress for Gerard, but to enlighten the importance of adhering to EU law and to explain why a breach was created. National procedural autonomy must be considered to understand that legal systems of the Member States are independent of the ECJ and the ECJ does not have the right to interfere with the procedures of this unless the appeal presented to a court or tribunal concerns Community law. In this instance, reference, for clarity, must be made to the ECJ, either by the tribunal or the Supreme Court that the case has been transferred to. Under EU law, remedies for a breach of Community can be applied only if the breach is ‘sufficiently serious’; if so, then a remedy of state liability is owed.

Gerard cannot specifically claim damages for the tribunals failure to refer but is able to claim damages against breaches made by the national law of the Member State in incorrectly applying Community law and not referring to it.      

BIBLIOGRAPHY

Books

Steiner and Woods, J and L, EU Law, 10TH Edition, 2009

Peterson and Shackleton, J and M, Institutions of European Union, 2006, p152

Charter, D, A new legal environment, p23-25

Fairhurst, J, Law of European Union, Pearson, 7th Edition, 2009

Martin and Turner, J and C, EU Law, 2006

Cases

Lyckeshog (case C-99/00) [2002] ECR I-4839

Brassier du Pecheur SA v Federal Republc of Germany (case C-6 and 48/93) [1997] ECR I-1029

Dorsch Consult (case C-54/96) [1997] ECR I-4961

Rutlili v Minister for the Interior (case 36/75) [1975] ECR 1219

Commission v Spain (case C-92/96)

Commission v Italy (Re Statistical Levy) (case 24/68) [1969] ECR 193

Costa v ENEL (6/64) [1964] ECR 585

Amministrazione delle Finanze dello Stato v. Simmebthal SpA (case 106/77) [1978] ECR 629

Journals

Cabral, P and Chaves, Member State liability for decisions of national courts adjudicating at last instance, 2006, Maastricht Journal of European and Comparative Law 109-26

Bernitz, U, Controlling Member State Courts under EU law: The duty to refer cases to the ECJ and the Kobler Doctrine on Member State Liability

Murray, A, The European Commission, 2007, vol 1

Legislations

European Communities Act 1972 s.2(1) European Communities Act 1972 s.2(1)

EC Treaty

Treaty of Lisbon

Treaty of Nice

Websites

http://ec.europa.eu/dgs/secretariat_general/publications/laws_procedures/index_en.htm>  accessed on 12/12/09

http://www.europeanfoundation.org/docs/Wednesday%206%20February/ARTICLE%2039.mht

---