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Foster: EU Law Directions

Chapter 6

1. What are the benefits of the Art 234 preliminary ruling procedure for the development of Community law?

Article 234 EC has as its purpose the uniform interpretation and application of Community law in all the member states and contributes to legal certainty by ensuring that Community law means the same thing in each and every member state, even more important now with a Union of 27 member states. It was designed to work with the cooperation of national courts by providing the means whereby national courts would not give their own interpretations to Community law or decide themselves on its validity. The intended relationship was of equality and cooperation, rather than hierarchy or an appeal system, therefore the Court of Justice should only provide a guiding ruling and not direct the national courts. It provides for the sharing of jurisdiction over Community law between the Court of Justice and the national courts.

Article 234 was the instrument which allowed the Court of Justice to develop the doctrines of direct effects and supremacy, vital for the development of the system of remedies under Community law which have been so helpful to individuals, for example, in getting round the restrictions placed on them by the strict locus standi requirements of the direct actions (considered in Chapter 9) or where the Commission has been slow in ensuring the member states comply with their obligations

2. Is there a restriction on the bodies which may refer under Article 234?

Providing they comply with the guidelines issued by the Court of Justice in 2005 as to what constitutes a court or tribunal for the purposes of Article 234, there is no restriction.

3. In what way, if at all, has the use of Article 234 led to a system of 'precedence' being developed in the Community legal order?

The ECJ's rulings in da Costa and CILFIT are argued to be the start of the development of a system of precedent with the principle of “acte clair” also being introduced into the Community legal order in this connections.

4. Can you define the circumstances in which the ECJ would refuse to accept a reference under the Article 234 preliminary ruling procedure?

There are a number of circumstances now when the ECJ has refused to accept a reference. It may be summarised that the Court of Justice may decline to take a case under Article 234 in a number of situations:
• where the question referred is hypothetical;
• where it is not relevant to the substance of the dispute;
• where the question is not sufficiently clear for any meaningful legal response; and;
• where the facts are insufficiently clear for the application of the legal rules.