Preliminary Reference Procedure Essay

Preliminary Reference Procedure Essay-33
ECJ was initially very liberal about answering references: It would correct improperly framed references (see Schwarze C-16/65) and didn't worry about the reasons for which a reference was made nor the facts on which it was based (See Simmenthal).

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Original conception of relationship between ECJ and national courts was a 'horizontal' (i.e.

they are separate but equal, performing different functions) and 'bilateral' (i.e.

The duty in 234(3) is to ensure that EC law is applied consistently and prevent the adoption of national law that is inconsistent with that of member states.

There are two theories about which bodies this duty covers: o Abstract Theory: Only bodies whose decisions are never subject to appeal o Concrete Theory: Any body whose decision is not subject to appeal in the particular case in question.

The Constitutional Courts of a number of Member States exert a constitutional review on the obligation of national courts of last instance to make a reference for a preliminary ruling to the Court of Justice of the European Union (CJEU). Moreover, the article does not take into account the follow-up to the decisions of the Constitutional Courts before the concerned national courts. This Constitutional Court has developed extensive case law concerning its relationship with the CJEU. The relations between the Constitutional courts and the other national courts, including the interference in this area of the action of the European Court.

With preliminary references as the keystone of the EU judicial system, the cooperation of national judges with the CJEU forms part of the EU constitutional structure in accordance with Article 19(1) TEU. In this regard, it should be pointed out that the judicial liability is not linked to the decision not to refer but to the damages produced by that decision. Constitutional Courts, in fact, have the power to decide in proceedings involving the protection of fundamental constitutional rights and to review the compliance of domestic law and, prior to their ratification, of the Treaties with the Constitution. Concerning the effect of this judgment on the duty of national courts to refer a preliminary question to the CJEU, a national court submitted a reference to the CJEU. In the Czech legal order, the Charter is a constitutional act, which focuses on the protection of human and civil rights, while the Constitution concerns state sovereignty, territorial integrity, and the institutions. See, Broberg & Fenger, It is worth mentioning that, while Advocate General Bot pointed out that the CJEU should adopt a strict position concerning the obligation under Art.

The ECJ has furthermore been wary of the objection that to answer a reference would be to apply rather than interpret the relevant law.

In fact the ECJ is usually willing to give v detailed answers e.g. Problem of current system is that courts are overloaded with cases and this delays justice (especially answer of national court while waiting for a reference).

It is for the ECJ to decide whether a body is a court or tribunal and hence whether the ECJ may answer the reference questions.

This presents difficulties for things like arbitration panels.


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