EU Law

Van Gend en Loos established that not only judicial but administrative tribunals were acceptable.  However, it is the peripheries of the formal legal system which raise the question of whether they (peripheries) are suitable for the purposes of Art 234. 

Further, under Art. 234 a reference can only be made to the ECJ by a national court or tribunal.  Hence, based on the fact that the council’s social services department has appointed an adjudicator, the question to be addressed is whether or not the adjudicator is acting as a court or tribunal.  However, if there is any doubt that the social services adjudicator does not meet the EU standards of a court or tribunal this would need to be determined by the ECJ before the reference is considered.  

Unlike the USA’s jurisprudence, the EU judicial system may be seen as a split between national courts of the Member States and the European Court of Justice (ECJ).  

Whether or not it is possible for a Reference to be made in this case with reference to relevant European Communities Treaty provisions and decided cases.

The EC Rule for a reference has been established in the Treaties and cases and the criteria are as follows, inter alia: (i) is the reference about European Communities law; (ii) it must be from a court or tribunal; (iii) it must meet the standards laid down in Case 246/80 Broekmeulen [1981] ECR 2311; and (iv) whether the reference is compulsory or discretionary.  

Each criterion will be considered in turn.  Firstly it must be a matter pertaining to European Communities Law.  The Case 28 – 30/62 Da Costa en Schaake NV v Nederlandse Belastingadministratie [1963] ECR 31 and Case 166/73 Rheinmuhlen decided that Article 234 serves to ensure the harmonization of EC Law across all Member States.  On the facts a Council Decision was addressed to the Member States including the UK from as far back as 2001 and it required the childcare provisions Jane is seeking to rely on.  Given that Jane’s matter relates to this Decision, this first requirement is satisfied.

Secondly, whether a reference can be made will depend on whether or not the matter has been adjudicated in a court or tribunal.  This concept is an EC Law and is defined by EC Law Guidelines. In Case 246/80 Broekmeulen [1981] ECR 231 the ECJ provided guidelines for determining what is a court or tribunal including, worthy proceedings or adversarial, is it established by law, has inter partes procedures and independent.  It is noteworthy that although in the Broekmeulen matter the Appeals Committee was a private body and not recognized as a ‘court or tribunal’ under Dutch law, it operated with the consent of the public authorities and ‘with their cooperation’, it exercised great control over the practice of medicine in the Netherlands and hence the decision by the ECJ.

On the facts presented for the social services adjudication procedure the adjudicator sits alone, it does not provide decisions fro the whole of the UK (see Broekmeulen), it is not inter partes and any decisions taken by the adjudicator are not legally binding.  Hence, the social services adjudicator does not meet the criteria established in Broekmeulen.  On the other hand it could be determined by the Court as a court or tribunal under Art 234 since it is an emanation of the state (see Case 246/80 Broekmeulen [1981]).  Since there is doubt a reference can be made to the ECJ under Art 234 to determine whether or not the adjudicator is acting as a court or tribunal.

Thirdly, given the status of the social services adjudicator who was appointed by the local council, arguably it appears to lack independence.  This of itself though is not indicative of it not meeting the Broekmeulen criteria.  However, the further matters bearing against the adjudicator meeting the ECJ court or tribunal definition includes the fact that not only is there the absence of an inter partes hearing but also the adjudicator’s decision is not legally binding.  Additionally, in the Case 24/92 Corbiau v Administration des Contributions [1993] ECR 1-1277 jurisdiction was refused because a reference had been made from the office of the Director of Taxation, a body which acted in both an administrative and judicial capacity and therefore it was not held to be a court or tribunal.  Hence, it is submitted that the council’s social services adjudicator may not in all circumstances be a court or tribunal for the purposes of making an Art. 234 reference.  There are no facts to indicate that the social services adjudicator is acting in both and administrative and judicial capacity on behalf of the council.  It appears that the adjudicator does not meet the criteria.  Since the European Court of Justice is flexible in relation to interpreting a court or tribunal the question regarding the adjudicator’s role as a court or tribunal can only be satisfied by the ECJ.

In Case 54/96 Dorsch v Bundesbaugesellschaft Berlin [1997] ECR 1-4961 and Case 416/96 El Yassini v Secretary of State for Home Department [1999] ECR 1209 there was a restatement of the facts and not all the factors previously established have to be satisfied.  In Dorsch the European Court of Justice was leaving nothing to chance or any other interpretation and therefore spelled out the criteria to be taken into account to determine whether a body is an acceptable one for making a reference.  The criteria included: Whether the body is established by law; whether it s permanent; whether its jurisdiction is compulsory; whether its procedure is inter partes; whether it applies the rules of law, and whether it is independent.  It is not necessary for all these requirements to be met in order for the European Court of Justice to determine whether or not it is a court or tribunal.

Fourthly, notwithstanding any short comings in respect of the Broekmeulen criteria Jane would still need to overcome the consideration relating to the compulsory or discretionary requirements for making the reference if considered to be a court or tribunal.  In short where the matter is before the highest court (the HL in the UK) a compulsory reference must be made but where the matter is before any other court or tribunal (as in this case) the discretionary reference requirements will have to be met.  In the UK, the appellant wishing to make an appeal from the Court of Appeal to the HL has to obtain consent (leave to appeal) of the Court of Appeal and if this is refused, then there is the possibility to apply directly to HL, which may or may not grant leave to appeal.  The issue is: when the Court of Appeal has refused a right to appeal to the HL, does it become the court of final appeal, required to make a reference under Art 234(3) EC?  It should be clear that on matters relating to EU jurisprudence where there is doubt the national court should refer to the ECJ.  Regarding the issue under consideration there are 2 cases where there has been an attempt to clarify this by the ECJ; although the facts are similar, they do appear to solve the dilemma completely as far as the UK is concerned: (1) Case 99/00 Kenny Roland Lyckeskog [2002] ECR it was held that where an appeal was possible to the Swedish Supreme Court, but that court did have a discretion to as to whether to take the appeal, the Swedish District Court should not be considered as the court of final appeal for the purposes of Art 234 EC. (2) In Case 453/00 Kuhne & Heitz NV and Productschap voor Pluimvee en Eleren [2004] ECR, the case concerned a ‘final decision’ of an administrative body which was based on a misinterpretation of Community law by a national court at last instance and that court had not referred the question to the ECJ for a preliminary ruling.  Basing its ruling in particular on the principle of cooperation arising from Article 10 EC, the Court stated:

        The principle of cooperation arising from Art 10 European Communities imposes on an

        Administrative body an obligation to review a final administrative decision, where an

        Application for such a review is made to it, in order to take account of the interpretation of

the relevant provision given in the meantime by the Court where:  

• Under national law, it has the power to reopen that decision
• The administrative decision in question has become final as a result of a judgment of a national court ruling at final instance
• That judgment is, in the light of a decision given by the Court subsequent to it, based on a misinterpretation of Community law which was adopted without a question being referred to the Court for a preliminary ruling under Art 234(3) European Communities
• And the person concerned complained to the administrative body immediately after becoming aware of that decision of the Court.

In Bulmer v Bollinger SA [1974] 3 WLR 202, Denning LJ set out the guidelines for a discretionary reference namely (i) the decision on the question of Community law must be conclusive of the case; (ii) the national court can follow a previous ruling of the European Court of Justice but it may also resubmit a question in the hope of getting a different ruling; (iii) where the point is ‘reasonably clear and free from doubt’ it may use the doctrine of acte claire and not refer; (iv) it is best to establish the facts before making a reference.  This Denning LJ mechanistic attitude was superseded by a more flexible communautaire approach by Bingham J (as he was then) in Customs and Excise Commissioners v ApS Samex [1983] and Bingham J whilst applying Denning LJ guidelines drew attention to the European Court of Justice’s expert knowledge of Community law and the ability of the Commission and other Member States to make representations in cases before the European Court of Justice (see R v International Stock Exchange ex parte Else [1993]).  Since this is an EU matter, it is instructive to be mindful of the dynamics of the development of EU guidelines which was recently issued and available on .

The EU law and cases indicate that there is doubt as to whether or not the adjudicator is a court or tribunal i.e. acte clair is missing.  The ECJ’s approach has been to apply the law on a case by case basis.  The author Nigel Foster in his text EU Law states:

Under Article 234, the courts of the member states can seek a ruling from the Court of Justice on the interpretation of all forms of Community law including international treaties and recommendations and on the validity of Community secondary legislation.  An EU Decision is secondary legislation and therefore clarification should be sought from the ECJ with regards to the status of the adjudicator i.e. is it a court or tribunal and if so does it have jurisdiction to make a reference i.e. under EU law there is no certainty that the adjudicator has the authority to hear Jane’s matter.  In Folglia v Novello (No. 2) the Court of Justice held that its role was not to give abstract or advisory opinions under Article 234 but to contribute to actual decisions and that although discretion is given to the national courts, the limits of that discretion are determinable only by reference to Community law.  

Both EU law and case law signals doubt on the court or tribunal status of the council’s duly appointed adjudicator.  There is clearly an EU matter of law to be considered given that what Jane seeks to rely on is a Council Decision.  However, given the status of the adjudicator it appears highly unlikely that the adjudicator will amount to a ‘court or tribunal’ sufficient for the European Court of Justice to accept a reference in all circumstances.

Critically explain the purpose and effect of Article 234 EC Treaty 

Purpose of Article 234 EC Treaty:

There are two dimensions to the purpose of Article 234 EC Treaty, firstly to provide the legal principles for preliminary ruling procedure and remedies for Community law rights of individuals.   Additionally, Article 234 facilitated the establishment of the ‘dual vigilance’ system for the enforcement of Community law, the remedies developed through the doctrines of direct effect and supremacy and obtaining effective remedies either based on national procedural rules or through the doctrine of state liability for breach of Community law and not national laws.  It is through the preliminary reference procedure where courts refer and re-refer questions to the ECJ that these doctrines have been developed by the ECJ.

Where it is established that a Council Decision has direct effect it provides for an individual to enforce provisions of Community law directly in their own national courts.  The doctrine of Direct Effect was established in the Van Gend en Loos case and it was held that an Article of the EEC Treaty could have direct effect if it was:

1. Clear and precise
2. Unconditional
3. Its operation did not require a legislative implementing measure on the part of the State.
4. That the Article must lay down a negative prohibition rather than a positive obligation.  Note: This 4th condition was laid down by the Court.  However, it was subsequently dropped in later cases, notably Alfons Lutticke GmBH [1966] ECR 205.

The continuous development of EU law through cases has also added new dimensions to the first 3 items stated above.  Hence, where a provision is ‘conditional’ on some objective circumstance or factor, for example, can be applied by a court because the court can determine whether or not that circumstance or factor is present.  Only provisions which are conditional in the sense that they confer a discretionary power on a third party (e.g. Member States or Commission) would be excluded from having direct effect i.e. the national court cannot usurp that discretion.

Secondly, Article 234 establishes the rules for a national court or tribunal to have jurisdiction to make a reference to the ECJ.  Case law such as Nederlandse Spoorwegen [1973] and Broekmeulen [1981] established the guidelines for a court or tribunal and the references were accepted by the ECJ.  However, the requests for references in Nordsee v Reederei Mond [1982] and Criminal Proceedings against X [1996] were held to lack jurisdiction and the matter was not heard by the ECJ.

The ECJ has been criticized for its changing policy in relation to preliminary references.  In its embryonic stage to encourage harmonization between national courts and the ECJ much effort was placed on encouraging references, cooperative aspects of the procedure and that there should be equal division of labour between the ECJ and the national court.  The result has been delays in responding to references and where there was no formal approach for reference questions to be formulated the European Court of Justice reformulated the reference question and asked itself the question that should have been asked. See R v Henn and Darby [1981] and Creamery Milk Supplies [1980].  To rebut these criticisms the European Court of Justice published in December 1996 a Note for Guidance on References by National Courts for Preliminary Rulings.  The Note is for guidance only and has no binding interpretative effect.

The effect of Article 234 EC Treaty:

Article 234 is one of the most important procedural provisions of the Treaty.  It facilitates dialogue between national courts and the European Court of Justice and provides the meeting point between national and Community law.

It serves three main functions: (i) It ensures uniform application of Community law by providing ruling on the interpretation of Community law; (ii) It ensures unity of the Community legal order and the coherence of the system of judicial remedies established by the Treaty, by entrusting to the European Court of Justice the power to rule on the validity of Community acts that is disputed in national proceedings and (iii) It facilitates an access to Justice by making clear that Community law is to be applied not only by the European Court of Justice but first at national courts level, thus enabling citizens to enforce their Community rights in national jurisdictions.

The preliminary reference system has led, in effect, to a transfer of powers at three levels, namely: (a) from governments of the Member States to the institutions of the Community; (b) from the executive and the legislative to the judiciary and; (c) from higher national courts to lower national courts.

Combining the mechanism of preliminary references with the doctrines of primacy and direct effect enables individuals and companies to assert Community rights in national courts.  Thus individuals may use Community law both as a “shield” (to defend themselves from action by national authorities which infringes Community rights) and as a “sword” (to challenge national measures on the grounds of incompatibility with Community laws).  Consequently, the preliminary ruling procedure provides an opportunity for individuals and, indeed, national courts to question governmental actions.

Preliminary references under Article 234 are now commonplace but not without criticism.  There are suggestions that it should be reworded.  Hence, in 1999 The European Commission proposed adding a sentence to the end of what is presently the 2nd paragraph of the Article, requiring national courts to ‘specify why the validity or interpretation of the rule of Community law raises difficulties in the case before it’.   It was also proposed that the second and third paragraphs should be amended to impose a precondition that the question ‘is of sufficient importance to Community law and that there is reasonable doubt as to the answer to that question’.

In conclusion, the reference request made by Jane cannot be complied with as there is doubt regarding the status of the adjudicator.  Neither EU law nor case law indicates the council’s adjudicator has standing as a court or tribunal.  An ECJ ruling is required.  

The purpose of Art. 234 is to ensure that European Communities law can be applied equivalent across the Member States.  The effect is to have proceedings which are based on EU Law to commence in the national courts or tribunals of Member States.

References:

1. Foster on EU Law, Nigel Foster
2. European Parliament - Directorate General Internal Policies of the Union: The Relation between National Courts and European Court of Justice in the European Union Judicial System Preliminary Ruling Regimes According to Articles 234 EC. 68 EC. And 35 EU. – Legal Affairs February 2007.  Author: Denis BATTA – Trainee: Sarka Havrankova
3. EU Law, S. Harris, M. Horspool
4. Cases & Materials on EU Law, Stephen Weatherill
5. European Union Law, 6th Edition, Routeledge Cavendish Law Cards series
6. The K-Zone –