B.) The European Court of Justice is composed of 8 advocates general and 15 judges. One judge representing each country member of the European Union. All members of the court are appointed for renewable six-year terms by agreement among the EU nations. The court interprets EU treaties and legislation and ultimately its decisions overrule those of national courts, courts have the benefit of the ECJ’s opinion before passing judgment
In the case of Marshall v Southampton area health Authority, Mrs. Marshall was retired by Southampton health authority at the age of 62, while male co-workers had the opportunity to work until the age of 65. EU law states that the retirement age of men and women should be equal. The ECJ found that there was a conflict in the UK law, and Later the UK made changes to its legislation.
The European Court of Justice will not hear an action brought by an individual, unless referred to it by a national court where the action was brought in the first place. It also hears cases involving breaches of the Treaty obligations by Member States.
C.) Article 234 of the treaty of Rome provides that any court or member state may refer a question on EU Law to the ECJ if it considers that ‘a decision on that question is necessary to enable it to give judgement.’ Article 234 will allow law to be interpreted in the same way through out Europe.
A reference must be made from a court from which there is no further appeal, the lower courts have some discretion whether or not to do so. However they are usually discouraged from using it as it is time consuming and expensive. Certain guidelines had been set down in to considering whether reference was necessary. Lord Denning emphasised that no reference should be made:
- Where it would not be conclusive of the case and other matters would remain to be decided
- Where there had a previous ruling on the same point
- Where the court considers that point to be reasonable clear and free from doubt.
- Where the facts of the case had not yet been decided.
In R v International Stock exchange, ex parte else (1993) the judge said that, once the facts have been found and the decision of European Law is vital to the courts decision, that court should make and Art.234 referral.
When it is submitted, proceedings are suspended in the national court until the ECJ has given its verdict. The verdict only tells the national court what the EU law on the matter is. A ruling by the ECJ should be followed by all other courts in the EU.
Art.234 is used in the case of Marshall v Southampton area health Authority, Mrs. Marshall was retired by Southampton health authority at the age of 62, while male co-workers had the opportunity to work until the age of 65. She claimed that the authority was discriminating against women by adopting that policy. The policy appeared to be legal under English law. However EU law states that the retirement age of men and women should be equal. The ECJ found that there was a conflict in the UK law, and Later the UK made changes to its legislation.
Di.) Harriet has made an employment claim in an employment tribunal. During the case it has become apparent that an interpretation of European law may decide the case.
In this case Harriet should be allowed to make a reference to the ECJ. This is because the only way they can go ahead with the case is with the ECJ giving an opinion on how they interpret the law.
ii) English Winemakers plc has appealed its case on unfair competition as far as the House of Lords. The court of appeal has already accepted that an interpretation of European law would decide the outcome of the case.
iii) Sarah has made a claim for equal pay in an employment tribunal, her claim is for equal pay with a man who has taken over her job that she formerly did. An ECJ reference in Macarthys v Smith has already identified that it is possible to claim equal pay with a man who held the position prior to the woman who was claiming.
In this case they will not need to refer to the ECJ, as there is a case similar to it. Lord Denning emphasised that no reference should be made where there had a previous ruling on the same point. The equal pay act would mean that the case is clear and and her claim is reasonable.
