The preliminary reference system under Article 234 has proved a more effective legal route for individual to make use of Community law than the direct access route (under Articles 230 and 232) Discuss.

There are basically three methods of an EU national may have access to the EU law and remedies. One is by way of referring to the national court where the national court may make preliminary reference under Article 234. The other method is by way of direct reference to the European Court under Articles 230 and 232. This essay will compare the two methods and will discuss about which route is more effective for an individual over the other.

National Reference Under Article 234

Under Article 234, the European Court of Justice (the ECJ) has the jurisdiction to give preliminary rulings on references made by the national courts concerning questions of community law. The ECJ has the power to give rulings concerning the interpretation of the treaty, the validity of the acts of the EU institutions, the interpretation of the EU statutes. This is a broad jurisdiction of the Court and also allows the national court to send reference on a variety of issues. The objective of Article 234 is to standardise the interpretation of EU law within the member states.

The ECJ has recently issued clear notes of guidelines on this issue after the confusion created by the guidelines at national level such as in the case of HP Bulmer Ltd v. J Bullinger SA. Among others it is stated that any court of tribunal of the member states may make a reference to THE ECJ to interpret the EU law. This means that more people have access to the EU law in this manner. It was previously understood that only the House of Lords could make such a reference. However Courts against whom there is judicial remedy must make reference to the ECJ.

The above note of guidance gives a clear statement that all courts will be able to make the reference. This augurs well for individuals as they can ask the court to refer any questions at any time as they no longer have to wait for the final court to make such reference. In addition the jurisdiction of the ECJ on this area is very broad.

Judicial Review Under Article 230 and 232

Article 230 of the EU Treaty provides for an opportunity for a judicial review of the decision of a European Union body. Article 230(1) speaks about the acts of the EU institution which include the European Union, and the Council of Ministers , of the EU Commission, of the European Central Bank which intended to produce legal effects against third party. The rational for the availability of the judicial review under this provision is explained in the case of Le Verts v. Parliament where the European Court of Justice (the ECJ) held that ‘the EEC is a community based on the rule of law in as much as neither its member states nor its institutions can avoid a review of the question whether measures adopted by them are in conformity with the basic constitutional charter, the Treaty’.

One of the problems with the judicial review application under this Article is that there is a time limit. An application must be made within 2 months counted from the measures’ publication in the official journal or the date of its notification to the applicant or the day in which it came to the applicant’s knowledge as decided in the case of Koenecke. It is explained in the case of Mutual Aid Services NV v. Commission that the limitation of time is a matter of public policy.

The other problem with this method of application is that it can only be made if it brings a legal effect. In the case of Commission v. Council it was stated that it would be inconsistent with the objective of the review so restrictively. However the categories of people that can apply under this provision are limited to privileged application. Under Article 230 (4) non privileged applicant such as individuals are not entitled to act in the interest of law in general. This is stated in the case of Schloh. An individual can only bring action where the act of the EU institutions has direct effect him and of individual concern.

BIBLIOGRAPHY:

P Cananta, Judicial Protection Against Member States, A New Jus Commune Takes Shape, 32 CML Rev (1995)

PP Craig and Grainee De Burca, EU Law, Texts Cases and Materials, Oxford: OUP (2003)

Nigel Foster, Blackstone’s EC Legislation, 2004/2005, Oxford: UOP

In the case of Confederation et Lagumes v. Council the ECJ held that, in relation to a decision, the Court cannot restrict itself in considering the official nature of the decision but must first taken into account the object and contents of the decision. This means that the Court has to be more restrictive in approach.

Article 232 provides that should the EU institutions such as the European Commission, the European Parliament or Council of Minister fail to act in accordance with the treaty, member states or any EU institution may bring an action before the Court of Justice for an infringement. The infringing institutions must first be asked to act, and if within 2 months failed to act, then action may brought within the next two months. In addition an individual may also complain to the ECJ that the institution has failed to address to that person to that person other than a recommendation or opinion. This means that an individual cannot bring an action for a failure to bring act on a recommendation.

Based on the above, it could be argued that the procedure under Article 234 is a better option for an individual as compared to the procedures under Article 230 or Article 232. This is based on the fact that the ECJ has a wider jurisdiction when a reference is made by the national court. The ECJ has also taken a liberal approach in allowing any national court and at any stage of the proceeding to refer the case. The procedure under Articles 230 and 230 is very restrictive, which give preference to privileged applicant as compared to non privileged applicants.

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