Article 234, ECJ
What role does Article 234 play in the enforcement EU law within the member states and how effective is it?
Article 234 states:
'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 ECB
(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 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 judgement, 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 decision there is no judicial remedy under national law, that court or tribunal shall bring the matter before the court of justice.'
Article 234 lays down the preliminary rulings procedure, whereby national courts refer questions of Community law to the European Court of Justice (ECJ) and through it any cases that depend on an aspect of Community law for a judgement maybe referred to the ECJ.
There are some occasions on which the ECJ will not accept a reference. In the cases of Foglia v Novello1 No.1 and No.22 these cases centred on a supposed dispute between Foglia over a clause in a contract, which had actually been deliberately inserted to manufacture the legal challenge. The ECJ held that they could only rule on matters that involved a genuine dispute. The two parties tried again in No.2, this time asking the ECJ to rule on exactly what A234 meant, but again the ECJ said they could only rule on genuine disputes and not where parties had used a 'a procedural device to induce a ruling.' 3
Another situation where the ECJ have refused to allow an A234 reference is academic disputes4 because questions raised are hypothetical, and the court does not 'before it those elements of fact and national law necessary for it to provide a useful answer to the questions.' 5
A234 specifies that any court or tribunal may make a reference, but distinction between the two is of little consequence as either can make a reference at any stage of the proceedings 6. The ECJ have given some guidance on what constitutes a court or tribunal in Broekmeulen7 and Nordsee 8. In Broekmeulen the body concerned was an appeals commission, which did constitute a court as; the committee operated with the approval of the public authorities, its' members included some ministerial appointees, it granted a full hearing, and most importantly its' decisions were final and legally binding. In Nordsee the question was whether an arbiter in a commercial dispute could be seen as a court. The ECJ said that in this case an arbiter could not be a court as both parties had entered into the process voluntarily and still had recourse to the national court system if the arbitration failed.
Paragraph 3 of A234 says that a court only needs to make a reference if a ruling is 'necessary' for the judgement, and subsequent cases have clarified what is meant by necessary. Most importantly in Cilfit9 guidelines were given on when a ruling would not be necessary. A ruling is not necessary when; the question of interpretation of community law is not relevant to the conclusion of the case, the question is materially identical with a question which has already been the subject of a A234 reference, or where the correct application of community law is so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved (this is known as the doctrine of Acte Clair). Furthermore, it was held in Da Costa 10that a court might make a reference even if the question is one that is materially identical to a matter already referred.
Member states were initially somewhat reluctant to make references and in HP Bulmer11 it was held that a ruling would only be necessary if it were conclusive to the judgement and it was the court of last instance, even then it would not be necessary if the ECJ had given a similar ruling or the matter was reasonably free from doubt. Today the UK's stance is that if there is any real doubt on the matter a reference should be made 12. Otherwise a reference is largely discretionary, although if the court is one 'against whose decision there is no judicial remedy under national law'13 , then a reference must be made. This creates an interesting problem for the courts as if a lower court refuses permission to appeal it may be that it has make an A234 despite not being the court of last resort.
It is important to understand that Article 234 is not an appeals procedure and if the court wishes to clarify the meaning of a piece of community law it should make a reference prior to deciding the case itself. Moreover, once an A234 reference has been made the ECJ should not get involved in either the facts of the case '14, or the comment upon the validity of any national legislation in relation to Community law.
The ECJ's rulings are extremely powerful, as its' decisions are not bound by national precedent or court structure 15, nor do national courts have any authority to declare a community act invalid16 . The ruling is binding on the court that made the reference, and under Article 10 of the treaty, national courts must apply the ruling in subsequent cases. As the decisions only provide guidance on interpretation the ECJ are effectively stating the law as it always was and therefore decisions are retrospective. The only exceptions to this rule are where giving the decision retrospective effect would lead to serious economic repercussions 17, or where the ECJ declares a piece of EC law void. As such the A234 procedure has become an extremely effective element of Community law enforcement used to guarantee that community law is interpreted in the same manner across the EC.
- [1980] ECR 745[^ Return]
- [1980] ECR 3045[^ Return]
- Foglia v Novello No.2 [1980] ECR 3045[^ Return]
- Melicke v ADV/ORGA AG [1992] ECR I-4871[^ Return]
- Melicke v ADV/ORGA AG [1992] ECR I-4871[^ Return]
- Irish Creamery Milk Suppliers Association v Ireland [1981] ECR 735[^ Return]
- Broekmeulen v Huisarts Registratie Commissie 1981 ECR 2311[^ Return]
- Nordsee v Reederei Mond [1982] ECR 1095[^ Return]
- Cilfit srl v Ministro della Sanita [1982] ECR 3415[^ Return]
- Da Costa en Schaake NV v Nederlandse Belastingadminstratie [^ Return]
- HP Bulmer Ltd v J Bollinger SA [1974] Ch 401 (CA)[^ Return]
- R v Internation Stock Exchange, ex parte Else Ltd [1993] 2 CMLR 677[^ Return]
- Costa v ENEL[^ Return]
- Telemarsicabruzzo v Circistel [1993] ECR I-393[^ Return]
- Rheinumullen-Dusseldorf v Einfuhr-Und Vorrasstelle fur Getreide und Furttermittel (NO.1) [1974] ECR 33[^ Return]
- Foto-Frost v Hauptzollamt Lubeck-Ost [1987] ECR 4199[^ Return]
- Barber v Guardian Royal Exchange Assurance Group [1991] QB 344 [^ Return]
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