Disretionary and Mandatory References

1- Discretionary Reference:

Article 234 (ex 177) suggests that any court or tribunal can make a reference to the European Court of Justice, it reads the following:

“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 court or tribunal of a Member, the Court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, 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 decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice.”

The example given in the previous chapter on how a lower court may seek a reference is based on the principle that if the lower court decides against seeking a preliminary ruling, it is still possible for the appellate court to seek a reference. However, if the Community law is still an issue, and the case has been already appealed, the lower court has discretion to seek a preliminary ruling without interference from a higher court.

In 1996, the European Court of Justice issued Notes for Guidance to National Courts for Preliminary Rulings. (See Penelope Kent, European Union Law, Nutcases, 3rd ed. P.69.

In Bulmer v Bollinger (1974 CA, Lord Denning of Great Britain laid down guidelines for discretionary referrals, he said:

· “Article 234 references should be made only if a ruling by the European Court is necessary to enable the English court to give judgment in the case.
· “Necessary” means that the ruling would be conclusive in the case; if other matters remain to be decided then the ruling would not be considered “necessary”.
Also:
· There is no need to refer a question, which has already been decided by the European Court of Justice in a previous case.
· There is no need to refer a point which is reasonably clear and free from doubt; this is known as the ‘acte clair’ doctrine.

The court must consider all the circumstances of the case, especially:

· The length of time, which may elapse before a ruling, is made; the delay may cause injustice in an urgent case, and it takes about 18 months to get a ruling.
· The possible overloading of the European Court of Justice, which in turn will cause more delay.
· The difficulty and importance of the case.
· The expense, which will be involved.
· The wishes of the parties; it must be noted that the situation is different to an appeal in that the parties cannot make a reference themselves; it is the court which makes the reference.
· That the English court retains the discretion on whether to refer or not.”


2- Mandatory References:

These are referrals, which have to be made, because the appeal process has run out within Member State’s judicial system.

Article 234(3) reads:

“Where any such question is raised in a case pending before a court or tribunal of a member state against whose decisions there is no judicial remedy under nation law, that court or tribunal shall bring the matter before the Court of Justice.”

In 1982 the European Court of Justice issued a ruling stemmed from a claim by several Italian textile firms that a health inspection levy on import of wool violated a 1968 Community agricultural regulation. (See SrL Clifit v Ministry of Health, Case 283/81) 1982 ECR 3415. In section 11 of the ruling the Court said:

“If, however, those courts or tribunals consider recourse to Community law is necessary to enable them to decide a case, Article 177 (now 234) imposes an obligation on them to refer to the Court of Justice any question of interpretation which may arise.”

For more information on this subject, read: P. Pescatore, References for Preliminary Rulings under Article 177 EC, 1986; George A. Bermann, Roger J. Goebel, William J. Davey, Eleanor M. Fox, Cases and Materials on European Community Law, American Casebook Series, West Group.


Gabriel Sawma

Copyright 2005 Gabriel Sawma. ALL RIGHTS RESERVED