{"id":368,"date":"2019-06-06T09:16:18","date_gmt":"2019-06-06T09:16:18","guid":{"rendered":""},"modified":"2019-06-07T09:27:36","modified_gmt":"2019-06-07T09:27:36","slug":"comparison-national-eu-courts-7353","status":"publish","type":"post","link":"https:\/\/www.lawteacher.net\/free-law-essays\/european-law\/comparison-national-eu-courts-7353.php","title":{"rendered":"Comparison of National and EU Courts"},"content":{"rendered":"

The Court
\nof Justice of the European Union (CJEU) ensures \u2018that in the interpretation and
\napplication of the treaties, the law is observed\u2019.[1]<\/a>
\nBy contrast, national courts apply and enforce EU law and ensure effective
\nremedies are available.[2]<\/a><\/p>\n

Under a preliminary ruling procedure the CJEU responds
\nto a question asked by national courts regarding the meaning of EU law, or the
\nvalidity of a measure of EU law.[3]<\/a> This
\ninvolves interpreting EU law and is not an appeal. National courts decide
\nwhether to refer to the CJEU, in relation to the interpretation of treaties, or
\nthe validity and interpretation of acts of the Union institutions, bodies,
\noffices or agencies.[4]<\/a> To
\nbe admissible, there must be a genuine dispute between the parties, and the
\ncourt will not respond to hypothetical questions.[5]<\/a>
\nFurthermore, the question must be relevant to the resolution of the substantive
\naction in the national court.[6]<\/a>
\nThe question must be articulated clearly for the CJEU to give a meaningful
\nresponse and if the factual or legal context lacks clarity, with inadequate
\nbackground information, then the court will refuse to give a ruling.[7]<\/a> <\/p>\n

Only national courts or tribunals can refer. In
\ndeciding whether a body constitutes a court or tribunal, a number of issues
\nwill be considered; primarily whether the body is established by law and
\nwhether it is permanent, also, whether its jurisdiction is compulsory and
\nwhether it has an inter partes<\/em> procedure.
\nWhether it applies rules of law and whether it is independent are further
\nconsiderations. However, the CJEU has ruled that this criteria is not absolute.[8]<\/a> <\/p>\n

According to Article 267, a \u2018court or tribunal may, if
\nit considers\u2026 necessary to enable it to give a judgment, request the Court to
\ngive a ruling\u2019.[9]<\/a> This
\nindicates that there is discretion as to whether they refer. However, it
\nfurther states that where a case is \u2018pending before a court or tribunal of a
\nmember state, against whose decisions there is no judicial remedy under
\nnational law, the court and tribunal shall bring the matter before the court\u2019.[10]<\/a>
\nThis refers to cases that are due to be heard at the highest national court,
\nmeaning there is no judicial remedy following its decisions. In these
\nsituations referral to the CJEU is obligatory. <\/p>\n

Further
\nguidance was provided in the CILFIT case.[11]<\/a>
\nHere, the court established that even if it is the highest court and there is
\nno judicial remedy, there are certain circumstances where a referral is unnecessary.
\nWhere the question of law is not relevant and will not aid in the resolution of
\nthe dispute, then a referral is not obligatory. This also extends to when a
\nprevious CJEU ruling has adequately covered the point. This indicates a system
\nof precedent. The application of EU law may be sufficiently obvious, meaning
\nthere is no scope for doubt as to how the question raised should be resolved
\nand it is clear to the national judge what the interpretation should be (known
\nas the acte clair principle). There is no doctrine as to what interpretation
\nmeans and, as national courts are not always under obligation to refer, then
\nthere is the potential for the acte clair principle to be abused by national
\ncourts, resulting in a failure to refer. However, national courts must consider
\nthe matter equally obvious to other national courts and the CJEU, giving regard
\nto the versions of the provision in different languages and considering the
\nlinguistic variations. National courts also consider the specific
\ncharacteristics and the nature of EU law and the risk of divergences in
\njudicial decisions within the EU. <\/p>\n

Once a referral
\nto the CJEU has been made then the procedure involves an advocate general, a
\nwritten stage and, if necessary, an oral hearing. The court either settles a
\ncase by an order or deliberating on the basis of text drafted by a judge- rapporteur.
\nThis ensures uniformity of EU law and promotes judicial dialogue between the
\nCJEU and national courts. A majority makes decisions and there is one collective
\njudgment. This judgment does not only refer to a purpose driven interpretation
\nof the relevant law but also a systemic understanding of the legal order of the
\nEU; extending to the interpretation of all EU laws.[12]<\/a>
\nThe referring court is bound by the interpretation held by the CJEU, when
\ndealing with the matter in which the question was raised and where an identical
\nquestion is asked.[13]<\/a>
\nHowever, more recent case law has involved national courts ignoring CJEU preliminary
\nrulings due to the CJEU exceeding its jurisdiction, indicating that CJEU
\npreliminary rulings are not always binding.[14]<\/a>\n<\/p>\n

Where there has
\nbeen a failure to refer, then there has been a breach of constitution and the
\nEuropean Commission can bring the matter to the CJEU.[15]<\/a> Furthermore,
\nindividuals who are part of the case may give rise to an action for damages
\nfrom the state.[16]<\/a>\n<\/p>\n

In the Miller litigation, both the High Court and the
\nSupreme Court had the opportunity to refer to the CJEU, however chose not to. Following
\nthe announcement that government intended to invoke Article 50 Treaty on
\nEuropean Union (TEU), Miller argued that parliamentary approval was required
\nthrough a vote or debate before intention to invoke Article 50 could be
\ndeclared. The Government argued that they could trigger Article 50 based on
\nroyal prerogative powers, so parliamentary consultation was unnecessary. After
\nthe High Court judgment it was suggested that the CJEU would have the final say
\non the use of Royal Prerogative. If interpretation of Article 50 were required
\nthen this would be a matter of EU law rather than UK law, as stipulated in
\nArticle 267 (TFEU). The issue of whether an Article 50 notice can be revoked if
\na Member State changes its mind may be an issue, which requires interpretation
\nby the CJEU. However, this is a contentious area as many felt that a decision
\nto trigger Article 50 as a national arrangement is not relevant to the CJEU. <\/p>\n

The Miller
\nlitigation advanced to the Supreme Court. This is the court of last instance,
\nso if there were any uncertainties regarding the interpretation of EU law, then
\na referral must be made to the CJEU unless it is \u2018acte clair\u2019. The issue of the
\nirrevocability of article 50 was not raised in the Supreme Court, and it
\nproceeded on the assumption of it being irrevocable. This failure to consider
\nthe irrevocability of Article 50 could be seen to be politically motivated, as a
\nfailure to identify a consensus on the irrevocability of Article 50 would have resulted
\nin the Supreme Court, as the court of last instance, being obligated to refer
\nto the CJEU. This would have been unpopular, as it could be seen that the EU
\nwas interfering in the way the UK\u2019s exit. However, failure to consider the
\nirrevocability of Article 50 and the absence of an Article 267 referral to the
\nCJEU for interpretation has created legal uncertainty. The assumed
\nirrevocability of Article 50 is a contentious issue, due to the strict
\ninterpretation of Article 50(3). There has been much academic debate
\nsurrounding the assumed irrevocability of Article 50, with Professor Closa
\ndrawing on international examples where the state is permitted a \u2018cooling off
\nperiod\u2019 in which it is able to change its decision.[17]<\/a> Additionally,
\nLord Kerr of Kinlochard has acknowledged the potential revocability of Article
\n50.[18]<\/a> During
\nthe High Court hearing of the Miller litigation, there was much debate
\nregarding whether a referral should be made to the CJEU. Some argued that a
\nreferral was \u201clegally unavoidable\u201d and that failure to refer would trigger \u201ca
\nrisk of infringement of EU
\nlaw by the UK\u201d.[19]<\/a>
\nThe opposing argument is that\u201c\u2026Parliament did not intend for EU rules, like the
\nduty to make reference to the EU Court, to have any effect in UK law in matters
\nof withdrawal from the EU\u201d.[20]<\/a><\/p>\n

Despite such
\narguments, the Supreme Court was under an obligation established in EU treaty law,
\nwhich cannot be avoided through domestic procedural rules.[21]<\/a>
\nThe revocability question was one of the most complex issues in the Miller litigation
\nand was unresolved. It should have been unavoidable that the Supreme Court
\nwould make a referral to the CJEU, due to it being the court of last instance
\nof a Member State, but also as the court\u2019s judgment rested on the
\ninterpretation of EU law. Evidently, there has been a breach of EU law causing
\nan environment of legal uncertainty. Any decisions made by Parliament resulting
\nfrom this judgment are not as steadfast and certain as they would have been,
\nhad it been made clear whether triggering Article 50 would begin the inevitable
\ncourse of ceasing to be a member of the EU, regardless of whether a deal upon
\nexit had been reached or not. Although \u201cthe politics of the EU referendum
\nresult would be likely to rule out\u201d the option of a CJEU referral being made, regarding
\nthe revocability of Article 50 would have avoided any legal uncertainty
\nfollowing the Supreme Court Judgment.[22]<\/a><\/p>\n

Bibliography:<\/h3>\n

Table of case:<\/h4>\n