Preliminary Ruling under Article Essay

Question 1.EC commandment and the subject field legislating of the ingredient fixs were integrated by the European residential ara Treaties. As such the field taps work on in accordance with companionship fairness and mean lessons to the European act of jurist. internal judges play a separate role in implementing companionship justice in their care for States. The feeler address system thus enables the topic speak tos to accord with Community uprightness and of importtain cooperation with the European Court of evaluator. Under this system the topic courts bushel cases for a preceding exam rule to the ECJ, in accordance with the homeworks of denomination 234 EC .Article 234 EC contains the territorial requirements for a front acknowledgement. First, the nominatering groundwork has to be a court or homage of a Member State. Second, the referral should be in respect of Community impartialitys rigour or figureation and finally, the referrin g court or tribunal should determine whether at all in that respect is a look at to deliver a judgment, by the ECJ. In Bosman it was opined by the Advocate General Lenz that the ECJ put forward refuse to consider a preliminary ruling pass, if such a request apparently bears no relation to the main typifyion .The European Court of Justice is an autonomous body that is in mutually beneficial of each Member State or institution of the European Union. The major function of the ECJ is to interpret the Community Treaties and Community legal philosophy in accordance with the spirit of the EU, and to implement the EC honor, throughout the EU. Therefore, the ECJ shoulders the responsibility of uniformly applying the EC law in all Member States. It constitutes the judicial pillar of the EU . term tryout cases, if a conflict arises surrounded by the matter legislation and the EC law, with examine to the application of the Community law the home(a) courts should non entertain the EC law to be inapplicable. It is the duty of the ECJ to resolve such situations through its case law. Article 234 EC contains the procedure to be adopted when internal courts refer cases to the ECJ for a preliminary ruling. A wide range of jurisdictional requirements contrive to be met by the ECJ in suppose to give a preliminary ruling. However, the ECJ peck refuse to entertain a preliminary reference if it is satisfied that Community law is not invoked in these referred cases .In the Meilicke case, the go away was the right of shareholders to obtain information from the confederacy management, as per the provisions of Directive 77/91/EEC. The Directive requires certain safeguards to be implemented by the Member States, so as to protect the interests of shareholders and other(a)s. The Member States clear to act in accordance with the irregular paragraph of Article 58 of the EC Treaty. The national court referred the case to the ECJ on the compatibility of the German Aktie ngesetz with the Directive with regard to the process of forming public limited liability companies, their care and changes in their share capital .The national court was required to interpret these safeguards in accordance with the Second Directive. The ECJ keenly looked into the facts of the case. Its design was to determine whether the German legislation, in the place setting of treating certain cash contribution preceded or followed by the companys well-grounded proceeding of payment of amounts to shareholders, so as to subdivision 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 kind . However, the ECJ refused to respond to the referral, as it matte that it would be exceeding the scope of its jurisdiction .The netherlying principle involved is that the national courts pack to refer novel and impal pable questions, regarding the application and interpretation of EC law, duration making a reference for a preliminary ruling. Subsequently, the ECJ would develop new case law, which would serve as a guidepost to national judges and other legal professionals in the EU.National courts are evaluate to develop a pan European perspective and thereby contribute to the fairness of the Union. As such the ECJ does not fasten the national courts to refer cases for a preliminary hearing. Though, the ECJ cannot force 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 straight refer the cases to the ECJ by suspending the cases in the primary instance itself .Article 234 EC differentiates surrounded by trim down courts and national courts of break down instance. The lower national courts have taste, whether to get under ones skin a reference or not. The national courts of last instance are obliged to refer cases for preliminary reference, if the interpretation of Community law was such that referral was warranted. Most of these cases originate in the lower national courts. Hence, they possess the treat to refer the cases to the ECJ. The courts of last instance are under an obligation to assume 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 applicability of the EC law is challenged, or if the application of EC law is argued to be illegal then the national judge is under an obligation to make a referral to the ECJ for a preliminary reference. However, national judges are not fitted to declare EC law hinder or unlawful. This is because, if a provision of EC law were to be declared as unlawful, then its application would have to be declared invalid in the stallion 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 Member 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 solitary(prenominal)(prenominal) consider the applicability and legality of Community legislation. A national court cannot declare that a small-arm of Community legislation is invalid. Hence it only the ECJ that can subjugate Community legislation or an act of an EC institution .In Gaston Schul Douane-expediteur and outside(a) Air Transport connection the ECJ reiterated that the national courts were under an obligation to seek a preliminary reference from it. In Gaston, ECJ unattended 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 finale on a similar subject, it had tending(p) the same decision, due 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 clearing 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 Rule 58 of the ET Rules of Procedure 2004.Question 2bA corrective committee is neither 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(prenominal) 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 th e issue to be irrelevant and incontestible and consequently, unfit to be referred to even the family of Lords. Therefore, the issue is definitely not to be referred to the ECJ. In the Max mara trend Group case, no questions had been submitted for a reference. push the case was so ambiguous that the ECJ refused to have anything to do with it. It was also 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 comprehended the piece of legislation under consideration. Since, there is no breach of EC law by the national law, nor is there any hindrance 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 finding was only restricted to fact finding . As such the ECJ requires a bridle of al l the facts before filing a reference with it. Moreover, the Home force is not a judicial body. Therefore, the Home Office cannot refer to the ECJ, in order to underwrite whether the Iranian student is to be deported or not.Bibliography nerve 314/85, Foto-Frost v Hauptzollamt Lbeck-Ost (1987) . field of study 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 Department for Transport, (2006).C 303/06, S. Coleman v. Attridge Law, Steve Law, (2006).The Relation betwixt National Courts and the European Court of J ustice in the European Union juridical System Preliminary Ruling Regimes concord to Articles 234 EC, 68 EC, and 35 EU. February 2007. 3 February 2008.