With regard to the remedies available to the Commission, from the ratification of the Maastricht Treaty 1993, Art 228 (EC) would allow for a financial penalty to be imposed on the UK, such as that imposed in Commission v Greece. In that case the ECJ applied the penalty, factoring in the guidelines issued by the Commission, the seriousness and length of the breach, and the ability of the Member State in question to pay.
Question 2
Was the Asylum and Immigration Tribunal entitled to proceed without making a reference to the ECJ?
Approaching this question we will consider the preliminary reference procedure under the scope of the article 234 EC. From the outset, it will be argued that the Asylum and Immigration Tribunal were not entitled to proceed without making a reference to the ECJ.
“The Court of Justice shall have jurisdiction to give preliminary rulings concerning:
a) the interpretation of this Treaty;
b) the validity and interpretation of acts of the institutions of the Community and of the European Central Bank;
c) the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide.
Where 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 judgment, request the Court of Justice to give a ruling thereon.
Where any such question is raised in a case pending before a court or tribunal of a member State, against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice”.
In essence, the Art 234 brings in the right for any court or tribunal in any Member State to request the ECJ interpretation of EU law provisions. It also seeks to guarantee that words or phrases in EU legislation are given the same and standardize interpretation throughout the EU helping to ensure that EU law is applied unfailingly.
It is important to stress that Art 234 is not an appeal procedure, it is prompted by national courts or tribunals during the course of legal action itself. The intention of the rulings is to assist the national court or tribunal to interpret and apply EU law correctly in giving a final ruling.
However, it is important for our purposes to stress, from the third paragraph of Art 234, that there will be certain circumstances where the national court must apply for an Art 234 preliminary reference. In order to demonstrate that the Asylum and Immigration Tribunal were not entitled to proceed without making a reference to the ECJ, we need to show that the third paragraph of Art 234 applies, and not the second paragraph, which would give the Tribunal discretion as to whether or not to submit a reference. (Before we continue any further, for the purposes of Art 234 it is submitted that the Asylum and Immigration Tribunal satisfies the definition of “any court or tribunal”).
Thus, does the third paragraph apply here? In Costa v ENEL the ECJ held that:
“ by the terms of this article (Art 234) national courts against whose decision, as in the present case, there is no judicial remedy, must refer the matter to the Court of Justice.”
From this slightly vague explanation of the mandatory reference procedure, Lord Denning in Bulmer v Bollinger was induced to interpret this as follows:
“Short of the House of Lords, no other English court is bound to refer a question”.
This interpretation would evidently be detrimental to our argument. However, fortunately for our purposes, in Chiron Corporation v Murex Diagnostics Balcombe LJ qualified this:
“[Art 234(3)] refers to “a court against whose decisions there is no judicial remedy under national law”. For convenience, I will refer to such a court as the court of last resort. Where there is no right even to apply to the House of Lords for leave to appeal from a decision of the Court of Appeal – e.g. on a refusal by the Court of Appeal, on a renewed application, to grant leave to apply for judicial review – then the Court of Appeal will be the court of last resort. So Lord Denning MR stated the matter too widely in Bulmer v Bollinger”
Given that leave to appeal to the High Court was refused it could be argued that the Asylum and Immigration Tribunal would come under Balcombe’s LJ definition of a “court of last resort”. This in turn demonstrates that the third paragraph of Art 234 does apply, and so the Asylum and Immigration Tribunal were not entitled to proceed without making a reference to the ECJ.
On a related note, if Gerard were to apply for a preliminary reference now, it is submitted that he would be unlikely to be successful. This is because of the similar Italian case, which was decided recently, ruling that the Italian immigration law was incompatible with EU law. The ECJ sated in the case of Da costa:
“The authority of an interpretation already given by the Court may deprive the obligation [under Art 234(3)] of its purpose and thus empty it of its substance. Such is the case especially when the question is materially identical with a question which has already been the subject of a preliminary ruling in a similar case ”.
This was later approved by the ECJ in CILFIT :
“National courts or tribunals are not obliged to refer to the Court of Justice a question concerning the interpretation of Community law raised before them if that question is not relevant, that is to say, if the answer to that question, regardless of what it may be, can in no way affect the outcome of the case”.
However, this does not detract from our original argument that the Asylum and Immigration Tribunal were not entitled to proceed without making a reference to the ECJ in the first place.
Question 3
What remedies are available to Gerard for the Tribunal’s failure to refer?
The remedies discussed here will primarily focus on the doctrine of state liability for breach of EU law obligations. The doctrine of direct effect defines the relationship between citizen such as Gerard and the Community, to ensure the consistent application of EC law throughout the Member States. However, there will arise the circumstances where a party could be without a remedy because of improper implementation of EU law.
Take Gerard’s situation as an example. He has been denied leave to appeal to the High Court, and similarly, an application for a preliminary ruling to the ECJ was refused. To overcome the deficiencies of direct effect, the ECJ has developed the aforementioned doctrine of state liability, in order to aid a citizen such as Gerard, whose is lack of remedy is the failure of Member States, in this case the UK.
The Francovich case is an important one for our purposes. An Italian scheme to provide minimum complication for workers on the insolvency of their employers was found to be in breach of a requirement under Directive 80/987. Because of this, the newly-unemployed claimants were unable to recover wages lawfully due to them. The ECJ ruled that firstly, Italy was in breach of its obligations, and secondly (and more importantly), Italy were liable to compensate the workers for the loss resulting from that breach. The ECJ held that:
“the full effectiveness of Community rules would be impaired and the right they recognize would be undermined if individuals were unable to recover damages where their rights were infringed by a breach of EC law attributable to a member state ”
The court held that three conditions must be met to establish liability under Francovich, one of which was that the relevant Directive must confer rights on individuals. Unfortunately for Gerard, his case does not concern a Directive, but rather a breach of Art 39 (EC) on the free movement of workers.
However, the principle has been extended beyond Directives to include any breach of EU law, by the ECJ in Brasserie du Pecheur. (In this case a German beer purity law was found to be in breach of Art 28 that provides for the removal of all quantitative restrictions on imports or exports or measures having an equivalent effect) The new conditions to establish Member State liability are as follows:
Firstly, the rule of Community law infringed must be intended to confer rights on individuals. In Gerard’s case, Art 39 aims to allow workers to move from one EU Member State to another for the purposes of employment, and to prohibit discrimination on grounds of nationality against workers who have moved. This is one of the four key freedoms under the Treaty, and it is evidently intended to confer rights on individuals, and therefore satisfies first requirement.
Secondly, the breach must be sufficiently serious to justify imposing state liability. It will be crucial to establish precisely what is meant by “sufficiently serious”. The case law has demonstrated that this term will vary according to the nature of the act and the amount of discretion available to the Member State. In the case R v Ministry of Agriculture, Fisheries and Food ex parte Hedley Lomas (Ireland) Ltd the ECJ held that:
“…where, at the time when it committed the infringement, the Member State in question was not called upon to make any legislative choices and had only considerably reduced, or even no, discretion, the mere infringement of Community law may be sufficient to establish the existence of a sufficiently serious breach.”
Thus, it was established that even a mere infringement of EC law by Member State could be classed as sufficiently serious. If we apply this to Gerard’s circumstances, a strong argument can be made to the effect that a law forcing him to leave the country as a result of a failure to register would constitute a sufficiently serious breach. It is directly in contravention of Art 39 and the free movement of workers.
Gerard could also seek to employ the principle under Dillenkofer, arguing that the UK’s breach is “manifestly serious”.
Finally, the court in Brasserie du Pecheur held that there must be a direct causal link between the breach of the obligation imposed on the Member State, and the damage actually suffered by the applicant. Again, if we apply this to Gerard’s case, it would appear evident that the UK’s breach of Art 39 on the free movement of workers is directly linked to Gerard having to give up his employment in the UK and being forced to leave the country.
Therefore, it is submitted that all three requirements in Brasserie du Pecheur have been satisfied by Gerard, and therefore he is likely to succeed in a state liability action against the UK. However, although we do not know Gerard’s circumstances in their entirety, it is entirely possible that he may wish to remain in the UK. Damages under the principle of state liability may be insufficient as a result, especially given the difficulty of quantifying his loss in being forced to leave the UK. Ideally, therefore, his remedy of choice would be almost a specific enforcement of his right under Art 39 as a worker, which would entitle him to remain in the UK.
Ideally, G. would like an interim remedy, which will allow him to remain in the UK pending the correct implementation of Art 39 on the free movement of workers.
Gerard should therefore seek to rely on the ECJ’s ruling in R v Secretary of State for Transport ex parte Factortame in relation to the doctrine of supremacy. In that case the House of Lords was placed in a difficult position of facing an act of Parliament enacted after UK membership to the EU in 1972, which specifically contradicted EU law. The applicants had sought an injunction, which would have had the effect of suspending the Act in question until an Art 234 reference could be made. This was difficult for the Lord given that there was no rule in the English public law that would allow this kind of interim relief, or that EU law could allow in a national court to suspend operation of a national law. It therefore made a reference to the ECJ posing this question. The ECJ reemphasised the supremacy of EU law through the principle of cooperation laid down in Art 10(EC), and that any provision of a national legal system, which might impair the effectiveness of community law, even temporarily are “incompatible with those requirements which are the very essence of EC law”.
Therefore the position of the ECJ with regards to interim relief was evident:
“the full effectiveness of Community law would be just as much impaired if a rule of national law could prevent a court seized of a dispute governed by Community law from granting interim relief in order to ensure that full effectiveness of the judgment to be given on the existence o the rights claimed under Community law. It therefore follows that a court which in those circumstances would grant interim relief, if it were not for a rule of national law, is obliged to set aside that law”.
Applying Factortame to Gerard’s circumstances, the ECJ’s judgment should prove persuasive in granting Gerard interim relief pending the correct application of Art 39 (EC) on the free movement of workers, which would have the effect of suspending the 2007 Act requiring Gerard to register, meaning he would be entitled to remain in the UK, which is, in all the circumstances probably his most desired remedy.
BIBLIOGRAPHY
Books
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Rawlinson, W. European Community Law – A Practitioner’s Guide”, Sweet & Maxwell, London, 1994
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McCormick, J. The European Union; politics and Policies, Westview Press, 4th ed., USA
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Storey, T. and Turner, C. “Unlocking EU law”, Hodder Education Hachette, London, 2009
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Spence, D. “The European Commission” John Harper Publishing, 2006
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Foster, N. G. “Blackstone’s Statutes on EU Treaties and Legislation”, Oxford University Press, 19th ed. 2008-2009
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Lasok, D. and Bridge, J. W. “Law and Institutions of the European Community”, 5th ed., 1991
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Horsepool, M. and Humphreys, M. “European Union Law”, Oxford University Press, 2008
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Steiner, J. “From Direct effects to Francovich: Shifting Means of Enforcement of Community Law”, 18 ELR, 3, 1993
Case law
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Commission v Italy (Re Payment of Export Rebates) (Case 31/69) [1970] ECR 25
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Commission v Greece (Case C-387/97) [2000] ECR I-5047
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Costa v ENEL (Case 6/64) [1964] ECR 585; [1964] CLMR 425
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Bulmer v Bollinger [1974] Ch 401, CA
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Chiron Corporation v Murex Diagnostics (No 8)[1995] All ER (EC) 88
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Da Costa en Schaake NV v Nederlandse Belastingadministratie (Cases 28 to 30/62) [1963] ECR 61
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CILFIT v Ministry of Health (Case 283/81) [1982] ECR 3415
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Brasserie du Pecheur SA v Federal Republic of germany; R v Secretary of State for Transport, ex parte Factortame Ltd (Cases C-46 and C-48/93) [1996] ECR I-1029
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R v Ministry of Agriculture, Fisheries and Food, Ex parte Hedley Lomas (Ireland) (Case C-5/94) [1996] ECR I-2553
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Dillenkofer and others v Federal Republic of Germany (Cases C-178, 179, 188 and 190/94) [1996] ECR I-4845
Storey, T., Turner, C., “Unlocking EU law”, Hodder Education Hachette, London, 2009
Spence, D., “The European Commission” John Harper Publishing, 2006
Commission v Italy (Re Payment of Export Rebates) (Case 31/69) [1970] ECR 25
Commission v Greece (Case C-387/97) [2000] ECR I-5047
Foster, N.G., “Blackstone’s Statutes on EU Treaties and Legislation”, Oxford University Press, 19th edition,, 2008-2009
T. Storey, C. Turner, Unlocking EU law, Hodder Education Hachette, London, 2009
Costa v ENEL (Case 6/64) [1964] ECR 585; [1964] CLMR 425
Bulmer v Bollinger [1974] Ch 401, CA
Chiron Corporation v Murex Diagnostics (No 8)[1995] All ER (EC) 88
Da Costa en Schaake NV v Nederlandse Belastingadministratie (Cases 28 to 30/62) [1963] ECR 61
CILFIT v Ministry of Health (Case 283/81) [1982] ECR 3415
Horsepool, M. and Humphreys, M. “European Union Law”, Oxford University Press, 2008
Brasserie du Pecheur SA v Federal Republic of germany; R v Secretary of State for Transport, ex parte Factortame Ltd (Cases C-46 and C-48/93) [1996] ECR I-1029
R v Ministry of Agriculture, Fisheries and Food, Ex parte Hedley Lomas (Ireland) (Case C-5/94) [1996] ECR I-2553
Dillenkofer and others v Federal Republic of Germany (Cases C-178, 179, 188 and 190/94) [1996] ECR I-4845
Brasserie du Pecheur SA v Federal Republic of germany; R v Secretary of State for Transport, ex parte Factortame Ltd (Cases C-46 and C-48/93) [1996] ECR I-1029