Wednesday, March 23, 2005

Preliminary Reference and Preliminary Ruling

Member State court or tribunal may submit a request "Preliminary Reference" to the ECJ to render a judgment “Preliminary Ruling” on issues that confront them whenever an application of EU Treaty is involved. The ECJ ruling enables national courts to render an authoritative decision on the interpretation and validity of Community law. This follows the fact that Member State body enforces Community law.

Preliminary rulings of the Court of Justice provide an opportunity to develop Community law. Individuals as well as Member State courts may request a preliminary ruling. It enables national courts to apply Community law to the cases to be decided upon. The ECJ makes its views on the matter clear and unambiguous.

National courts are bound to follow preliminary rulings of the Court of Justice. The rulings are binding throughout the the European Union. The advantage of this process lies in the fact that it promotes legal unity and certainty. However, the ECJ held in Da Costa en Schake N.V. v Nederlandse that no national court may be deprived of the opportunity to refer a provision that has already been interpreted. (See the same reference, (Case 28-30/62) 1963.

In principle, the Court of Justice may decline to examine the motives behind the preliminary reference submitted by national courts. It may not answer all questions raised by the reference. (See Tedeschi v Denakvit. Case 5/77, ECR 1555, 1574) 1977.

Under Art. 234 (Ex 177) of the EEC Treaty, only “court or tribunal” of a member state may initiate a preliminary reference to the Court of Justice. The Court, however, expanded the scope of this limitation by allowing entities whose members may not be judges, provided that those entities have the power to adjucate disputes. The Court for example has treated as “tribunals”, boards of tariff, customs, social security, immigration and tax appeal. (See Rheinmuhle-Dusserdorf v Einfuhr-und Vorratsstell Ge Treide – joined Cases 146 and 166/73) 1974.

The case stems from a German court decision to deny Rheinmuhlen an export rebate for cereal. He appealed to the Federal Tax Court, a higher court, which ruled in his favor, holding that he was entitled to a rebate, and sent back the case to the lower court. The lower court refused to abide by the decision of the Federal Tax Court and referred the matter to the European Court of Justice, which held that the power of a lower court to make a preliminary reference is appropriate.

Preliminary references are allowed under Art.234 of the EC Treaty, provided certain criteria are met:
· The interpretation of the EC Treaty;
· The interpretation of the EC institutions and the European Central Bank;
· The interpretation of statutes of the bodies established by an act of the Council, where those statutes so provide

The Court of the First Instance is given the right to request a preliminary reference for the purpose of consistency and unity of the law being affected.

The next chapter deals with types of preliminary references.


Gabriel Sawma

Copyright 2005, Gabriel Sawma. ALL RIGHTS RESERVED.






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