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Published: Fri, 02 Feb 2018

European Court Justice Treaty

Article 234 of the EC Treaty, is a judicial device which provides the European Court of Justice (ECJ) with the power to ensure that the law established by the Treaties has the same meaning and effect in all the Member States of the European Union. Undoubtedly, in a community which encompasses 27 Member States and three distinct legal systems, there is an inherent danger that Community law could develop differently among Member States. In order to guarantee the uniform application of Community law, an ultimate authority had to be created in relation to the interpretation of EU law. That authority is the ECJ and Article 234 provides the mechanism for national courts to refer questions regarding the interpretation of Community law to the ECJ. The preliminary reference procedure has been essential in laying down the fundamental principles of the Community legal system, the integration of Europe and the development and harmonisation of Community law.

This paper aims to define ‘national courts and tribunals’ for the purposes of Article 234, distinguish between bodies which have a discretion to refer under Article 234 and those which are obligated to refer, and explain the purpose and effect of the preliminary ruling procedure.

Under Article 234 the Court has jurisdiction to give preliminary rulings, at the request of national courts, concerning both the interpretation of the Treaty and the validity and interpretation of acts of the institutions of the Community and the European Central Bank. Clearly, the national courts and tribunals play a fundamental role in the administration and application of Community law, given that they are the primary enforcers of a large proportion of it. However, the Treaty does not define the term `national court or tribunal’.

It is important to note that the determination of what is an acceptable court or tribunal is not reliant upon the definitions or categorisations provided by the national laws of Member States, rather it is a question for the Court. The majority of bodies that decide legal matters within Member States will normally be entitled to refer; however, not all bodies have been so recognised. A review of case-law reveals that the Court has been very flexible in its interpretation of what amounts to a court or tribunal and has accepted references from industrial tribunals, panels of professional chambers and other quasi-judicial bodies. Therefore, in the current case, the ability of the Dutch Medical Council (DMC) to make a reference to the ECJ is dependant upon whether it is recognised by the Court for the purposes of Article 234.

The decision in the Vaasen-Göbbelscase was the Court’s first attempt at establishing the criteria to be used in defining the term `national court or tribunal’. It was held that in order to determine whether a body making a reference is a court or tribunal for the purposes of Article 234 of the Treaty, the Court takes account of five criteria; it must be established by law, have a permanent existence, exercise binding jurisdiction, be bound by rules of adversary procedure and apply the rule of law. The Court subsequently extended the criteria to include the need for the court or tribunal in question to be independent.

In Broekmeulen v HRCthe ECJ ruled that the Appeals Committee qualified as a court or tribunal in the eyes of Community law because it made decisions which affected the right to work under Community law, it operated with the consent of the Dutch public authorities and there was no right of appeal from its decision to Dutch courts. However in Nordsee v Reederei Mond, the Court held that an arbitration tribunal constituted pursuant to an agreement under private law, without State intervention, is not to be regarded as a court or tribunal for the purposes of Article 234 and can not therefore make references for a preliminary ruling under that article, regardless of the fact that there was a legally binding decision and no right of appeal. In the De CosterCase, the ECJ held that the Collège, which had jurisdiction in local tax proceedings, but did not necessarily operate independently or preside over an adversarial process, satisfied the established criteria. In the Dorsch Consulting Case, the Court found that the Federal Supervisory Board established by German law was capable of making a reference even though the Advocate General came to the conclusion that the board was not a court or tribunal because in his view, the body was not independent and its decisions were not enforceable.

Although the case law regarding the definition of court or tribunal is somewhat inconsistent and provides the basis for a number of disagreements, it is clear that in determining which bodies to recognise under the Article, the Court is genuinely attempting to make the preliminary reference procedure available to all judicial bodies responsible for dealing with questions of Community law.

On the facts of the case, the DMC is a permanent regulatory body established by law and operating with governmental approval. Furthermore, it is clear that the DMC is mandated to give legally binding rulings with the aim of settling disputes relating to conditions of work, including entitlement to pension and that its jurisdiction is compulsory, as it is recognised under Dutch law, as the responsible authority for deciding those types of disputes within the medical profession. Therefore, the DMC will be qualified to make a reference under Article 234.

According to Article 234, national courts may ask for a preliminary ruling in two cases: 1) a discretionary reference under Article 234(2); and 2) a compulsory reference under Article 234(3). Guidelines for national courts with respect to preliminary reference are contained in both Article 234 and in the pronouncements of the ECJ. Generally, national courts and tribunals have discretion to request preliminary rulings. However, under paragraph 3 of Article 234 a court or tribunal against whose decisions there is no judicial remedy under national law is obligated to request a preliminary ruling if an issue of Community law is raised before it. This obligation can be relieved if the question has already been decided or if the correct interpretation of the rule of Community law is obvious, as demonstrated by the Da Costaand CILFIT cases.

On the facts provided, the DMC is under no obligation to make a reference for a preliminary ruling because an appeal can be made from its decisions to a higher adjudicating body. Furthermore, the provision does not explicitly confer rights on individuals, thus Maria can not force the DMC to ask for a preliminary ruling. In Bulmer v Bollinger Lord Denning laid down guidelines for discretionary referrals which are influential but not binding:

  • Article 234 references should be made only if a ruling by the European Court is necessary to enable the court to give judgment in the case.
  • “Necessary” means that the ruling would be conclusive in the case; if other matters remain to be decided then the ruling would not be considered “necessary”.


  • There is no need to refer a question which has already been decided by the European Court of justice in a previous case.
  • There is no need to refer a point which is reasonably clear and free from doubt; this is known as the ‘acte clair’ doctrine.

Since the DMC is not under an obligation to refer, it is acting within the area of discretionary jurisdiction. Therefore, it must first ask if an interpretative ruling is a necessary step in reaching its decision. An affirmative response gives rise to the question of how the discretion should be exercised. The DMC has the authority to decide on the correct interpretation and application of the law in Maria’s claim for unfair treatment if it considers that sufficient clarification is given by the case-law of the Court. However, if it believes that there is a new question of interpretation or if the existing case-law does not appear to be applicable to the facts of the case before it, a reference for a preliminary ruling can be made at its discretion. In this scenario, the DMC will only be obligated to refer if it intends to question the validity of an EC act (very unlikely on the facts provided), as the Court ruled in the Foto-Frost casethat only the ECJ may rule on the validity of EC law.

In considering the purpose and effect of the procedure the Court of Justice emphasises the importance of uniformity for EC law and has often stated that the objective of the preliminary ruling procedure is to ensure the effectiveness and proper functioning of the EU legal system as a whole, and to ensure uniformity in the interpretation and application of Community law, thus promoting legal integration amongst the Member States.

The Community legal system can be considered, a decentralised one, in that the national courts implement and apply Community law in the Member States with a degree of national procedural autonomy. However, pursuant to Article 10 EC Treaty, national courts are under an obligation to ensure the effectiveness of Community law, by interpreting national law in conformity with Community law. Thus, every national court of the Member States are now Community law courts and national judges have a duty to ensure that Community law is respected in the application and interpretation of the Community Treaties. It is important to note that the ECJ does not act as an appellate court. The relationship between the ECJ and the national courts is a collaborative one and the preliminary reference procedure facilitates dialogue between the national judges and the ECJ. Essentially, when a national court makes a reference, they are provided with an opportunity to formulate and present arguments in support of their view of the correct interpretation of the Community law, while affording the ECJ an opportunity to consider the impact of its interpretation on individual cases in relation to the national idiosyncrasies of the referring Member State. Article 234 expressly permits the Court to pronounce on the interpretation of Community law but does not permit the Court to pronounce on its effects. Thus the Court of Justice will interpret EU law in answer to the questions of the national judge and remit the ruling to the national court to reach a decision on the facts. The main objective in this cooperative process is to retain the independence of the national courts while preventing ‘a body of national case law not in accord with the rules of Community law from coming into existence in any Member State’ Through this procedure the national courts are assisted in matters of application and interpretation of Community law and on convincing argument, there is a clear prospect for the ECJ to diverge from its previous interpretations and to further develop the relevant case-law in light of the accepted fact that Community law is in a continual state of evolvement.

Without a doubt, Article 234 is the main instrument used by the ECJ to harmonise EC law as demonstrated by the judgment in Rheinmühlen where the Court stated at 43 that ‘Article 234 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.’ Thus, the primary purpose of the preliminary ruling procedure is to provide a mechanism whereby the ECJ can authoritatively rule on the interpretation or validity of EC law throughout the European Community to ensure that Member States do not reach their own interpretations as it is quite clear that divergences between the Member States would jeopardise the unity of the Community legal order and detract from legal certainty.

In addition, the preliminary ruling procedure is vital to the achievement of the ‘new legal order’. The Treaties themselves do not expressly include all the requisite provisions and rules to ensure the proper and efficient functioning of the Community. Thus, the ECJ had to establish them. The Court of Justice developed the principle of direct effect in the landmark Van Gend en Loos case. According to the Court, `the states have limited their sovereign rights’ as a result of the EEC Treaty, whereas the Community institutions are `endowed with sovereign rights’. The ECJ held that in interpreting Community law it is necessary to consider ‘the spirit, the general scheme and the wording’ of the provision. In Costa v Enel the Court considered ‘the terms and the spirit of the Treaty’ and concluded that it was not permissible for a Member State to give precedence to its own laws over those of the Community. Hence, the doctrine of supremacy of Community law was borne. It follows that directly effective Community law takes precedence over conflicting rules of national law.

The Treaty of Rome did not grant EC law supremacy over national law, nor did it give individuals standing to challenge national practices under the principle of direct effect. Clearly, by the ECJ, responding to legal questions posed by national judges, Article 234has been used extensively to achieve the ‘new legal order’ and to advance legal integration and harmonisation throughout the Community. This is achieved because the function of a preliminary ruling by the Court is to decide a question of law, and that ruling is binding on the national courts as to the interpretation of the Community provisions and acts in question. As far as rulings on validity are concerned, where an EC measure has been found to be invalid by the ECJ, the ruling provides ‘sufficient reason for any other national court to regard that act as void’ even though the judgment is directly addressed only to the referring national court.

Finally, a preliminary ruling never precludes a national court from making a new reference if they consider it appropriate to do so. This is important because it allows the national courts to make a reference on questions previously ruled on where it considers that the case-law of the ECJ may be in need of reconstruction. Thus, guaranteeing the development of Community law.

In conclusion, based on established case-law, the DMC is under no obligation to request a preliminary ruling but it is qualified to do so if it considers it appropriate on the facts of the case. There is sufficient decided EC case-law to support Maria’s complaint of unfair treatment with regard to the equalisation of pensions between men and women and it follows that the claim should be decided in her favour even without a reference to the ECJ. It is evident that the preliminary ruling procedure plays a fundamental role in developing and laying down the principles of the Community legal system, the integration of the Community, and the development and harmonisation of Community law. It is also clear that the cooperation and participation of the national courts is essential not only for the preliminary ruling procedure, but also for the Community as a whole to be successful.

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