Legal integration in the European Community, the process of establishing a binding supranational legal system across the member states, has been the result of interactions between three sets of decision-makers, namely, litigants, national courts, and the European Court of Justice (ECJ). The evolution of Community law represents an extraordinary transformation of international treaties into a system of supra-national constitutional governance within which the member states have surrendered a substantial part of their sovereignity.
Role of national courts in european law
The Treaty of Rome did not provide for the establishment of a Supreme Court similar to that of the United States, which would be competent to hear appeals against decisions of national courts. The authors of the Treaty, however, considered it imperative that there should be some mechanism to ensure the uniform application of Community law throughout the Member States. Such unifying jurisdiction is given to the ECJ by Article 234 of the EU [previously 177]. This article enables the ECJ, on the request of national courts, to provide rulings on the interpretation and validity of Community law. Article 234(2) states that, where a question of Community law is raised before a national court or tribunal, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the ECJ to provide a ruling. Article 234(3) provides that, where a question of Community law is raised before a national court against whose decision there is no judicial remedy, that court must bring the matter before the ECJ.
Thus, Article 234 draws a distinction between lower national courts, which have a discretion to make a reference, and national courts of final instance, which are under an obligation to refer.
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”, i.e. to defend themselves from action by the national authorities which infringes Community rights and as a “sword”, i.e. to challenge national measures on grounds of incompatibility with Community laws.
(George Tridimas, Takis Tridimas: National courts and the European Court of Justice)
Consequently, the preliminary reference procedure provides an opportunity for individuals and national courts to question governmental action. In this manner, the system of preliminary ruling has been transformed into a mechanism of enforcing EC law and implementing legal integration.
“What is important in the procedure, indeed crucial, is the fact that it is the national court which renders the final judgment” (Weiler, 1994, p.515).
The judges of lower Italian courts, for instance, were assertedly motivated by a desire to have their cases referring issues to the ECJ “feature at the center of the attention of the world of lawyers.” Francesco Ruggieri Laderchi, The European Courts and the National Courts
Most important of European Court of Justice (ECJ) judgements were based on preliminary rulings from judges of lower national courts for example – 6/64 Costa v. ENEL, 26/62 Van Gend en Loos v. Nederlandse Administratie von Belastingen and 14/83 Von Colson and Kamann v. Land Nordhein-Westfalen (Michal Bobek a kolektiv, Předběžná otázka v Komunitárním právu). And thus national courts play a crucial role in a process of implementation of Community law, thanks to institute of preliminary ruling
The Van Gend & Loos judgment is one of the most important judgments in the development of the Community legal order. The European Court of Justice specifies that the Community constitutes a new legal order of international law for the benefit of which the States have limited their sovereign rights and the subjects of which comprise not only Member States but also their nationals. The Court concludes from this a fundamental principle: that of the direct effect of Community law.
Van Gend en Loos 26/62
Community lawyers remember the Court’s judgment in Van Gend en Loos for two reasons. Here the Court ruled that provisions of the EEC Treaty have direct effect on individuals, and stated that the legal order established by the EEC Treaty is `a new legal order’ (Ole Spiermann, The Other Side of the Story)
“The European Economic Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only the member states but also their nationals. Independently of the legislation of member states, community law not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage. These rights arise not only where they are expressly granted by the treaty but also by reason of obligations which the treaty imposes in a clearly defined way upon individuals as well as upon the member states and upon the institutions of the community) “
Judgment of the Court of 5 February 1963
In Van Gend en Loos the Court concluded that Article 12 of the EEC Treaty (Article 25 EC Treaty) “must be interpreted as producing direct effects and creating individual rights which national courts must protect”. Direct effect meant that individuals “on the basis of this Article [may] lay claim to rights which the national court must protect”. Under Article 12 the individual was a holder of rights and national courts were obliged to hear the individual’s claims when putting the rights into action. Thirty years after the decision in Van Gend en Loos, Judge G. Federico Mancini wrote:
“But if the European Community still exists 50 or 100 years from now, historians will look back on Van Gend en Loos as the unique judicial contribution to the making of Europe.”
Mancini and Keeling, `Democracy and the European Court of Justice’
Costa v. ENEL 6/64
A fundamental judgment of the Court in respect of principles, the Costa v ENEL judgment shows that “the EEC Treaty has created its own legal system which, on the entry into force of the treaty, became an integral part of the legal systems of the member states and which their courts are bound to apply“, Judgment of the Court of 15 July 1964, and that Community law takes precedence over national law.
“The precedence of community law is confirmed by Article 189, whereby a regulation ‘ shall be binding ‘ and ‘ directly applicable in all member states ‘. This provision, which is subject to no reservation, would be quite meaningless if a state could unilaterally nullify its effects by means of a legislative measure which could prevail over community law .”
Judgment of the Court of 15 July 1964,Flaminio Costa v E.N.E.L.
Acknowledgement of basic principles, such as the direct applicability of Community law (judgment of 5 February 1963 in the Van Gend en Loos case, 26/62) and the primacy of Community law over national law (judgment of 15 July 1964 in the Costa/ENEL case, 6/64), has constituted its most significant contribution to European integration. On the basis of these principles, individuals may invoke Community law before national courts and seek the non-application of any national law which is contrary to Community law.
Like the doctrine of direct effect, the doctrine of supremacy of Community law, had no basis in the EC Treaty but was developed by the ECJ on the basis of the conception of how the new legal order should operate.
Simmenthal Case 35/76
Another keystone in the history of european case-law is case 35/76 Simmenthal.
According to the Simmenthal judgment, the precedence of Community law applies even with regard to a subsequent national law.
In that case Italian judge of first instance, the Pretore of Susa, had asked the Court of Justice whether it was consistent with Community law for a national system of judicial review to make it the duty of every judge, before excluding the operation of a national legal provision in conflict with Community law, to request a preliminary ruling by the Italian Constitutional Court. The European Court, held that:
“Any provision of a national legal system and any legislative, administrative or judicial practice which might impair the effectiveness of Community law by withholding from the national court having jurisdiction to apply such law the power to do everything necessary at the moment of its application to set aside national legal provisions which might prevent Community rules from having full force and effect are incompatible with those requirements which are the very essence of Community law“.
R. Caranta,Govermental Liability after Francovich, Vol. 2, 1996
On this ground the Court held that a system of centralised judicial review such as the one existing in Italy which delayed the final decision by requiring the matter to be referred to the Constitutional Court was not compatible with the principle of the effective protection of individual rights which was based upon Community law, and for this reason had to be set aside by every judge in the Member State.
These three judgements are one of the most important milestones in a history of european integration. Through procedure of preliminary ruling the ECJ has had the opportunity to establish the principles of primacy, direct effect and state liability in damages and to lay down the fundamentals of the internal market. And on the beggining of these judgements were call of national courts with preliminary rulings.
Preliminary rulings are of vital importance for the uniform interpretation of Community law. They are given when national courts refer disputes pending before them to the Court of Justice, ensuring permanent cooperation between the Court of Justice and the national courts.
The development of the legal order of the European Community depends on the cooperation between the Court of Justice EC and the national courts by means of the preliminary ruling proceedings of article 234 of the EC Treaty.
The Court of Justice and the national courts are deemed equivalent judicial bodies. Consequently, the preliminary ruling proceedings are not characterised by hierarchy but by cooperation which requires the national court and the Court of Justice – both within their own jurisdiction – each to make direct contributions to achieve a decision. (Guide to preliminary ruling proceedings before the Court of Justice EC)
Case 16/65, Schwarze
The most important function of the preliminary ruling proceedings is to ensure a uniform interpretation of Community law.
Secondly, the proceedings facilitate the application of Community law by offering national courts a helping hand in resolving the problems, which sometimes accompany the application of Community law.
Case 166/73, Rheinmühlen, para. 2-3
Thirdly, the preliminary ruling proceedings may serve as a means to protect the rights, which citizens derive from Community law.
The preliminary reference mechanism grants to national courts the authority to make a reference and ascribes to them the role of gatekeepers (authority to make reference is vested with them).
Lower national courts, from which the overwhelming majority of references originates, enjoy discretion whether to make a reference.
In short, the co-operation of national courts is a sine qua non for the success of the preliminary reference procedure and, consequently, the very development of the Community legal order, and the very development of the Community legal order. (George and Takis Tridimas: National courts and the ECJ)
And from this point of view we can cite lightly poetic epilogue one of the former members of Court:
“If the doctrines of direct effect and supremacy are . . . the ‘twin pillars of the Community’s legal system’, the [preliminary ruling] reference procedure . . . must surely be the keystone in the edifice; without it the roof would collapse and the two pillars would be left as a desolate ruin, evocative of the temple at Cape Sounion-beautiful but not of much practical utility”. (Judge Federico Mancini and Legal Clerk David Keeling of the European Court of Justice)
- George and Takis Tridimas: National courts and the ECJ: A public choice analysis of the preliminary reference procedure, 2001
- Ole Spiermann, The Other Side of the Story: An Unpopular Essay on the Making of the European Community Legal Order Academy of European Law online http://www.ejil.org/journal/Vol10/No4
- Francesco Ruggieri Laderchi, “The European Courts and the National Courts: Some additional observations on Italy,” (European University Institute, Florence, working paper, 1996, pp. 4-5.
- Guide to preliminary ruling proceedings before the Court of Justice EC http://220.127.116.11/en/jurisprudence/guide/
- Judgment of the Court of 15 July 1964, Flaminio Costa v E.N.E.L. http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&lg=en&numdoc=61964O0006
- Judgment of the Court of 5 February 1963 NV Algemene Transport – en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&lg=en&numdoc=61962J0026
- Mancini and Keeling, Democracy and the European Court of Justice, 57 Modern Law Review (1994) 175, at 183
- R. Caranta,Govermental Liability after Francovich, Vol. 2, 1996 http://www.jus.unitn.it/cardozo/Review/Torts/Caranta-1996/Frank.htm
- Michal Bobek, Jan Komárek, Jan. M. Passer, Mark Gillis, Přeběžná otázka v komunitárním právu, Linde Praha a.s., 2005