The preliminary reference : a means of cooperation source of contention?

Abstract

Community law is by its nature a common internal law in the Member States of the Community and is thus applied by their courts. However, it must have the same meaning and effect in all Member States. The ultimate authority to decide questions which arise is vested in the European Court of Justice which has the final say with regard to validity and interpretation of Community law. This ensures uniform interpretation and application of Community law. Without uniformity, Community law would be liable to fragment and become overlaid by the national legal systems. The preliminary rulings system is provided for by Articles 177 EC, 150 Euratom and 41 ECSC and is the only means by which uniform application of Community law can be attained. As the Court stated in ‘Rheinmuhlen’: "Article 177 is essential for the preservation of the Community character of the law established by the Treaty and has the object of ensuring that in all circumstances this law is the same in all States of the Community." Under the preliminary reference system, the national court decides whether a reference should be made and only specific issues are referred to the European Court. Once the Court has decided such issues, it remits the case to the national court for a final decision. Indeed, this system is intended to be a non-contentious co-operation device between national judicial authorities and the European Court, the latter meant merely to interpret and assess the validity of Community rules without applying them to the specific case in respect of which the ruling was requested. The preliminary ruling is simply a step in the proceedings which are being undertaken before the national courts. Once given, the ruling is binding on the referring court and may only be disturbed by a further judgment of the European Court. The procedure has been used willingly by many national courts, "rather as an architect is willing to seek advice of a consulting engineer or a quantity surveyor as a source of specialised expertise, needed by the architect to enable him to perform his task.” The European Court has in turn reassured the national courts that it will not exceed the limits of its own jurisdiction and will not pronounce on the reasons for which a reference was made or on the relevance of the questions referred to the actual case pending before them. It has also consistently reaffirmed that it takes no cognisance of the facts relating to the case or of its parties, but only provides an abstract ruling on matters of ") Community law in a co-operative rather than an antagonistic spirit. These at least are the principles which can ensure the continued respect for the independence and autonomy of national courts and increase the attractiveness of the procedure to litigants and national courts alike. To the litigant who may be asserting a Community law right, the preliminary reference will generally be the only possible way of bringing a case before he European Court. It offers a final and authoritative resolution of the Community law issues in the case, at a cost which need not exceed that of national appellate proceedings and after a delay which, although considerable, is comparable with those experienced in many such procedures. To the national court confronted with a point of Community law, the preliminary reference offers expert guidance in a field that is generally unfamiliar, without the loss of jurisdiction or control over matters considered by the national court to fall within it own province. The guidance is available, furthermore, without a prior determination by the national court. [...]