State Liability

In the following discussion it is necessary to examine the relationship that exists between the European Court of Justice1 residing in Luxembourg, and the National Courts of each member state across Europe within the Union. It will be important to look at this link between the two in order to establish the subsequent role of Article 234 EC2, its purpose, and the reasoning behind it. Moreover, we shall scrutinise the way that the ECJ uses Art234 in developing Community Law as a whole, and exerting a certain degree of supremacy over each Member State.

Furthermore, we ought to investigate as suggested by the discussion title, the checks and balances associated through the use of Art234 by the ECJ, preventing an abuse of its power, or creating a degree of subjective judicial activism leading to legal uncertainty and problems with legitimacy within the Community therein. Regarding the use of Art234 we must look as to whether it exists purely as an aid to help Member States understand Community Law as an easier method available to them regarding interpretation, or as a tool for the ECJ to further pursue and implement its own ideals and perceptions of a tighter integration amongst the Union.

This last point will be integral to this discussion as to whether the ECJ can be seen to be following a certain amount of judicial activism in its rulings under the pretence of Art234. To be able to put forward a balanced argument, it will be useful first to try to define the context of the term judicial activism. A dictionary definition of the phrase places judicial activism as; "... decisions that departs from established precedent or is independent of or in opposition to supposed constitutional or legislative intent... "3

This general summary of judicial activism within the framework of the ECJ, suggests that the court is pursuing its own ideals, or has its own perceptions as to the future of what the European Union should be4. It is important to note whether the ECJ is applying the law as a judiciary, or creating the law as a legislature, and possible problems of doing both in regard to legitimacy. In this way it is important to identify the main approach taken by the ECJ in relation to applying the law, and how this is followed in relation to using the example of ART 234.

The predecessor of today's preliminary ruling system was found in article 41 of the ECSC5 Treaty 1952. This article was rarely used, but gave the European Court an exclusive right to declare acts within its scope of jurisdiction invalid. Subsequently, when the same model of references was introduced into the EEC treaty, two important changes were made: the Court was given jurisdiction over interpretation of Community legislation, yet however was not to have sole jurisdiction.

From an outsiders point of view the use and availability of Art2346, seems to be an advantageous one, advantageous for both the jurisdictions of each Member State, and ultimately that of the ECJ and the Community order as a whole. At least this should be noted as a benefit in the eyes of the Community in general, but not necessarily in the light of supremacy regarding each Member7. As proposed for such a Community, European integration amongst member states is the essence to creating a successful and peaceful legal order therein8.

Without such a consistent, uniformed and prevailing legal order, the very purpose of the Union, and the stance of each state as a result, would be subject to vast and varying problems9. Subsequently, the main purpose of Art234 is; "... to ensure that Community law is applied uniformly by national courts. 10" As stated, this helps to create an organic link between the ECJ and each jurisdiction of every Member State, and subsequently removes the possibility of a varied and different approach to EC law from each court.

Yet having said this, the general approach taken by the ECJ in Firma Foto Frost, seems to be quite an authoritarian stance toward a reluctance of letting Member States have a full opinion as to legal integration procedure. This strict stance11, demonstrates early on, examples that the ECJ judges may be beginning to force their principles firmly upon each jurisdiction within the Community, ultimately it seems for an efficient integration process. It is important to note that a great deal of major principles established by the ECJ, have been decided in the context of a reference to the court for a preliminary ruling under Art23412.

Moreover, it is obvious through previous case law13, that this Article is an important part in the fundamental expansion and upkeep of Community law. With this in mind, the ECJ must maintain a strict approach in order for the community to achieve these objectives but must keep within a certain degree of legitimacy and legal certainty. With Art234 available to national courts this possibility of varying approaches to Community law can be kept to a minimum.

Indeed it creates a mutual regard for all respective national jurisdictions, and encourages collaboration within each respective legal system. Further to this it acts as a vital tool to enable the equal application of the law14, and is supported by the ECJ in the achievement that the law is the same "in all States of the Community15". Art234 allows national courts to seek advice from the ECJ regarding; EC Treaty provisions and acts of each of the Community institutions16, including non-binding acts using the Article as an interpretative tool17.

Moreover international treaties concluded by the Community18 and general principles of laws common to the constitutional traditions of the Member States were also judged to come under the sway of the court19. Thusly the ECJ gave Art234 a wide application regarding its use by each Member State, but furthermore maintained its control and supremacy as ultimately the national court would be seeking advice and interpretation given by the ECJ itself on a point of Community law.

Having said this however, the court is only empowered to give interpretation rulings on Community law, and has no jurisdiction20 to interpret domestic law21. This acts as a restraint on the ECJ's power restricting it from becoming an appellate court, but enabling it to further its objective of maintaining the legal order and continuity of the Community, but ultimately preserving the authority within each state. In this way, it could be argued that Art234 has become a unique principle within the context of European law.

Upon a referral to the ECJ, the proceedings at the national level become suspended until an interpretation has been provided to assist the court or tribunal dealing with the case, an interpretation that becomes binding therein on the national court. The ECJ subsequently has taken an active role in the creation of the constitutional order of the European Community through the almost indirect approach of providing interpretation. As shall be discussed, this could be seen as a sense of judicial activism, namely letting the ECJ judges take the law unto their own hands.

Furthermore this principle has led to a surge in the European court's caseload which perhaps the court may be ill-equipped to manage and require a level of reform. Indeed preliminary references account for almost half of all cases heard22. Having said this however, the court has often repeated that it is not superior to any national court, but rather regards the preliminary ruling as a co-operation between, as such, equal actors within separate jurisdictions23.

According to Rasmussen, the ECJ's choice to promote this co-operative approach, rather than the alternative of a hierarchical structure, was based on the theory of convincing national courts to eventually prefer this model of subsequent co-operation24 to avoid discrepancies between both. This can be further supported in the Brunner-case25. Further to this, if after a reference has been made to the ECJ the national court finds the response unclear or unsatisfactory, it may seek for a new or additional interpretation.

This helps to maintain the relations between the two judicial authorities especially relevant when it comes to national judges deciding cases in relation to Community principles. In this way, national courts within this system still have the possibility to dissent against the co-operative structure26. In CILFIT27, the Court held that article 234 does not constitute a means of redress for individuals and that it is thus for the national court to decide whether or not to refer a question to the ECJ.

Moreover, the national court may even be free to make a reference contrary to the wishes of the parties28. In a way this still retains a degree of supremacy and discretion for the national courts, and helps to protect the rights of the individuals, an objective the ECJ ranks highly29. Although it can be seen that the ECJ has taken a strict activist stance previously with case law, still gives the jurisdictions of Member States a certain a mount of application where they see it is necessary30.