Preliminary Ruling under Article Essay

Question 1.EC legislation and the issue legislation of the section States were integrated by the European union Treaties. As such(prenominal)(prenominal) the bailiwick judicial systems effect in accordance with Community police and refer cases to the European Court of jurist. National judges play a key exercise in implementing Community practice of law in their Member States. The prior acknowledgment system thus enables the content courts to comply with Community law and oblige cooperation with the European Court of Justice. Under this system the depicted object courts refer cases for a preliminary ruling to the ECJ, in accordance with the provisions of article 234 EC .Article 234 EC contains the sub judice poweral requirements for a preliminary credit entry. First, the referring substructure has to be a court or tribunal of a Member State. Second, the referral should be in respect of Community laws soundity or interpretation and fin eachy, the referring court or tribunal should specialise whether at all at that place is a need to deliver a judgment, by the ECJ. In Bosman it was opined by the Advocate General Lenz that the ECJ can refuse to consider a preliminary ruling request, if such a request apparently bears no relation to the main action .The European Court of Justice is an autonomous body that is in mutualist of any Member State or institution of the European Union. The major function of the ECJ is to interpret the Community Treaties and Community law in accordance with the spirit of the EU, and to implement the EC law, throughout the EU. Therefore, the ECJ shoulders the function of uniformly applying the EC law in all Member States. It constitutes the legal pillar of the EU .While hearing cases, if a competitiveness arises between the topic legislation and the EC law, with regard to the application of the Community law the subject area courts should non declare the EC law to be inapplicable. It is the province of the ECJ to resolve such situations through its case law. Article 234 EC contains the social function to be adopted when national courts refer cases to the ECJ for a preliminary ruling. A wide range of jurisdictional requirements have to be met by the ECJ in order to give a preliminary ruling. However, the ECJ can refuse to harbor a preliminary informant if it is satisfied that Community law is not invoked in these referred cases .In the Meilicke case, the issue was the right of shareholders to obtain information from the beau monde management, as per the provisions of Directive 77/91/EEC. The Directive requires reliable safeguards to be implemented by the Member States, so as to encourage the interests of shareholders and others. The Member States have to act in accordance with the second carve up of Article 58 of the EC Treaty. The national court referred the case to the ECJ on the compatibility of the German Aktiengesetz with the Directive with regard to the process of forming public limited liability com panies, their maintenance and changes in their share capital .The national court was postulate to interpret these safeguards in accordance with the Second Directive. The ECJ keenly looked into the concomitants of the case. Its objective was to determine whether the German legislation, in the context of treating certain cash contribution preceded or followed by the companys transactions of payment of amounts to shareholders, so as to offset the debts of the company to the shareholders or subscribers, violated Community law. The national court had held that Community law had been violated, because these amounts had been in the form of disguised contributions in variety . However, the ECJ refused to respond to the referral, as it felt that it would be exceeding the scope of its jurisdiction .The downstairslying principle involved is that the national courts have to refer invention and subtle questions, regarding the application and interpretation of EC law, while making a reference for a preliminary ruling. Subsequently, the ECJ would develop new case law, which would dress as a guideline to national judges and other legal professionals in the EU.National courts are expected to develop a pan European perspective and thereby contribute to the integrity of the Union. As such the ECJ does not compel the national courts to refer cases for a preliminary hearing. Though, the ECJ cannot soldiery national courts to submit cases for preliminary reference, Article 234 EC imposes such a requirement in some cases. In some other cases it requires national courts to directly refer the cases to the ECJ by suspending the cases in the first instance itself .Article 234 EC differentiates between lower courts and national courts of stand up instance. The lower national courts have delicacy, whether to guide a reference or not. The national courts of last instance are obliged to refer cases for preliminary reference, if the interpretation of Communi ty law was such that referral was warranted. Most of these cases originate in the lower national courts. consequently, they possess the discretion to refer the cases to the ECJ. The courts of last instance are nether an obligation to make such a reference, however, they possess some discretion in this matter and this has been specified in Article 7 EC .If a national judge has to deal with cases in which the validity and pertinency of the EC law is challenged, or if the application of EC law is argued to be illegal past the national judge is below an obligation to make a referral to the ECJ for a preliminary reference. However, national judges are not competent to declare EC law shut-in or unlawful. This is because, if a provision of EC law were to be state as unlawful, then its application would have to be declared invalid in the accurate EU. Therefore, it is unacceptable to declare a provision of the EC law invalid in a particular Member State while it is valid in other Memb er States, without any dispute or conflict with national legislation .In the Foto Frost case, the ECJ held that the national courts are under an obligation to refer questions regarding the applicability and validity of EC law to it. The ECJ held that national courts could only consider the applicability and legality of Community legislation. A national court cannot declare that a piece of Community legislation is invalid. Hence it only the ECJ that can invalidate Community legislation or an act of an EC institution .In Gaston Schul Douane-expediteur and International station Transport tie-up the ECJ reiterated that the national courts were under an obligation to seek a preliminary reference from it. In Gaston, ECJ ignored the subject matter of the case and only considered the preliminary reference made by the national court. Afterwards, the ECJ held that the referral had been incorrect, because in an earlier stopping point on a similar subject, it had given the same decision, du e to the fact that a specific piece of EU legislation would be declared invalid.Question 2 aThe Employment Tribunals are competent to refer cases, under Article 234 EC, to the ECJ, whenever a clarification is needed regarding an EC Directive. This is exemplified by Coleman . In this case it was held that the ET was well within its powers to make a referral to the ECJ. This is provided for in harness 58 of the ET Rules of Procedure 2004.Question 2bA disciplinal committee is incomplete a court nor a tribunal. Therefore, it is precluded from referring to the ECJ for a preliminary hearing. Moreover, a disciplinary committee, though a quasi judicial body, is all the same dependent on the administrator hence, the  ECJ will not accept a preliminary hearing referral from it. This is on the basis of the ruling in Corbiau .Question 2 cThe Appellate Court had deemed the issue to be irrelevant and unarguable and consequently, indispose to be referred to even the House of Lords. Therefo re, the issue is definitely not to be referred to the ECJ.  In the Max mara Fashion Group case, no questions had been submitted for a reference. Further the case was so ambiguous that the ECJ refused to have anything to do with it. It was excessively unclear as to why the case had been sent for reference and there were no provisions of EC law that had been violated .Question 2 dThe House of Lords need not refer to the ECJ, because it is fully convinced that it has get the picture the piece of legislation under consideration. Since, there is no breach of EC law by the national law, nor is there any difficulty in interpreting EC law, there is no necessity to approach the ECJ for a preliminary reference.Question 2 eIn the Nolle case, the ECJ held that a referral would not be entertained, if its purpose was only restricted to fact finding . As such the ECJ requires a verification of all the facts before filing a reference with it. Moreover, the Home office staff is not a judicial body. Therefore, the Home Office cannot refer to the ECJ, in order to ascertain whether the Iranian student is to be deported or not.Bibliography solecism 314/85, Foto-Frost v Hauptzollamt Lbeck-Ost (1987) .Case C 16/90 Nolle v. Hauptzollamp Bremen Freihafen (1991) ECR I 5163.Case C-83/91, Wienard Meilicke v ADV/ORGA FA Meyer AG, 1992 ECR I-4871.Case C 24/92, Corbiau v. Administration des Contributions, (1993) ECR I 1277.Case C-307/95 Max Mara Fashion Group (1995) ECR I-5083.C 415/93 Bosman v UEFA (1995) ECR I 4921.Case C-461/03, Gaston Schul Douane-expediteur BV v Minister van Landbouw, Natuur en Voedselkwaliteit, (2005).Case C-344/04, R (International Air Transport Association and European Low Fares Airline Association) v section for Transport, (2006).C 303/06, S. Coleman v. Attridge Law, Steve Law, (2006).The Relation Between National Courts and the European Court of Justice in the European Union Judicial System Preliminary legal opinion Regimes According to Articles 2 34 EC, 68 EC, and 35 EU. February 2007. 3 February 2008. <http//www.europarl.europa.eu/comparl/juri/study/courts_en.pdf>