Why the system of preliminary rulings in Article 267 TFEU is, and continues to be, important for the development of a coherent EU legal system and the liberalization of the procedure. The system of preliminary rulings provides the European Court of Justice (ECJ) an opportunity to assume an advisory role for other member states. The functioning of the ECJ is described under Article 19 of the Treaty of European Union (TEU) which states that the court must ensure correct interpretation and application of treaty law among member states as well as provide remedies for cases where there is no remedy available under national law, to ensure effective legal protection is provided by European Union (EU) to all its citizens.
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Treaties and acts are binding agreements created between EU member countries to describe the objectives, rules and relationship aspired to be formed between the members of the union having the ultimate intention of protecting the dignity, freedom, equality and respect for human rights for all citizens of the union as stated in Article 2 of the TEU. Coherent application of EU law throughout the union is a joint responsibility shared between the ECJ and the national courts. To ensure that member states apply EU law in a uniform manner Article 267 of the European Union Functioning Treaty (TFEU) plays an important role by developing community law which is applied by national courts based on its consultation with ECJ. This procedure is important because it creates a two way system allowing individuals subjected to European Union law to challenge the application of union law upon them in national courts. It also makes it possible for constant review of the validity and correct application of EU laws by ECJ. At the crux of the reference procedure lies the important principle that it is the national court which finally decides whether to refer to ECJ. However when there is no further judicial remedy for the individual to avail at national level and the dispute arises from incoherent application of EU law, it is a must for the case to be referred to ECJ for direction as stated in Article 267(3) of TFEU. This creates a vertical relationship between national courts and ECJ. At the same time the rulings provided to one member state is applied coherently to other members in a horizontal and multilateral manner. However there has been laxity in the application of Article 267 due to the increasing number of cases that has been referred to ECJ and the increasing number of countries that have become members of the EU. This has created delay in the functioning of the European court which is feared will create a miscarriage of justice. It follows from the judgement in the C-246/80 Broekmeulen v Huisarts Registratie Commissie (1981) ECR 2311 case that the obligation to refer under Article 234 (3) is not an absolute one. It was decided that a decision to refer was the prerogative of the national court. Only cases which had exhausted all available remedies under the national judicial system had to be referred to ECJ for a preliminary ruling. This was again emphasized in C-28/62 Da Costa (1963) ECR 31 case, where the question of necessity to refer if the case had already been answered in a previous ruling was raised. The reply was to exempt the case from referral to the Court of Justice in such matters because the national court was expected to apply the available decision. This introduced the concept of precedents into community legal system. In C-66/80 International Chemical Corporation (1981) ECR 1191 case ECJ further ruled that the precedent effect must apply to not only individual states but to all states where similar cases arise. This was based on its multilateral effect upon all member states. Finally to address cases in which decisions were so obvious that no reference was required ECJ came up with the doctrine of acte clair. This doctrine was applicable when the national court feels it can avoid referring to ECJ to reduce the burden on ECJ. It was applied in C 283/81 CILFIT (1982) ECR 3415 case. The decision in the case of CILFIT reinforced the delegation of duties to national courts and the use of precedents as a way of reducing the number of cases that are referred to ECJ under the preliminary reference procedure are however considered to have liberalized the position of ECJ in ensuring a coherent community law. The disadvantages of the above procedures were the possibility of errors in interpretation of judgements made, taking into consideration the various languages that are used by member countries and the abuse of power vested in member states to decide cases that need reference. Delegation of duties to national courts could result in failure to refer the matter because of the fine line that separated a case that was clear in it facts and one that required reference due to doubts in community law. To address these possibilities in C-173/03 Traghetti del Mediterraneo SpA (2006) ECR 1209 a principle was applied to establish liability for damages arising from failure to correctly interpret EU law and to refer cases to ECJ for preliminary rulings where no remedy is available. In conclusion although Article 267 advocates reference to ECJ it has liberalized the use of this procedure to reduce its workload. Measures such as the introduction of acte clair doctrine and application of precedents and reference of cases with no judicial remedies at the national level make this possible. Words : 997 Bibliography:
b) State liability in Francovich case, cases after Francovich and why a member state might not be required to pay for damages even if they are in breach of state liability. ________________________________________________________________ European Union directives have a vertical and direct effect on individual member states as well as a horizontal and indirect effect on other member states. Citizens benefit from the directives through its indirect effect. State legislative mechanisms have to interpret these directives coherently with the intentions of the EU, to ensure protection of the rights of their citizens. It is also necessary that the member state laws must be re modelled to correspond to these directives. Failure to comply with requirements of community law by a member state denies citizens their rights to protection under community law and this is translated as failure of the member state to protect the rights of its citizens. Because of this, the state is held liable for damages suffered by citizens affected by the absence of such protection in their national laws. This forms the basis for the doctrine of state liability. According to the doctrine a member state found to have played a role in the damage suffered by its citizen caused needs to compensate the individual for loss incurred. This doctrine was first applied in C-479/93 Francovich and Bonifaci v Italy (1991) ECR 5357 case to determine the Italian governments liability for breach of EU Directive No. 80/987/EC which allowed workers to be compensated for salary that was owed to them by the company in the event that it went into bankruptcy. Failure to incorporate this into the Italian national law created a disadvantage for Italian employees. They could not claim their salary from the company because under Italian national law there was no protection provided for workers affected by such incidence. Although this was provided by community law the national government had failed to legislate in accordance to this provision. The workers were therefore allowed to claim from their government losses they suffered. It was considered that the member state had failed to adhere to the requirements of Article 288 TFEU requiring it to take necessary measures to ensure national law complied with a directive of community law. The decision in Francovich set the stage for better enforcement of EU law and empowerment of its citizens. This case established state liability as a general principle of Community law. However it still left many issues related to criteria that would qualify a claim for reparation unanswered. In C-46 Brasserie/ C-48/93 Factortame (1996) ECR 1029 judgment a common principle that applied to all constitutional authorities of the state for a breach of community law based on three important conditions was developed to qualify a claim for reparation. The first condition was to ascertain that the directive meant to grant rights to individuals. Second, was to identify the extent of breach that had occurred for those rights and finally, to establish that there was a link between the stateâ€™s failure to legislate in accordance with community law and the damage suffered by the person affected. Although the first and second conditions could be easily ascertained difficulty was seen when determination of the extent of breach that had taken place which would entitle a claimant to claim for damages. The answer to this was established in C-352/98 P Bergaderm (2000) ECR 5291 where it was determined that the extent of breach had to be sufficiently serious to allow claims from a member state. Further to identify what was considered as â€œsufficiently seriousâ€ the court looked at how clear and precise the provision in EU law was and how these provisions had been breached by the member state, it also considered the discretion enjoyed by that Member State, if the infringement was intended to cause the damage suffered and the steps taken by EU institutions contributing towards implementation of practice contrary to EU law. These criteria were later applied in C-392/93 R v H.M. Treasury, ex parte British Telecommunications 1996 ECR 1631 to determine the seriousness of the breach. The court decided that the breach of community law was not sufficiently serious to warrant reparation by the member state. In C 178 & 179 Dillenkofer v Republic of Germany (1996) ECR 4845, the outcome in Francovich and Factortame was combined to arrive at the judgment which concluded that breach of state obligations to align national law with union law and the resulting damage that fulfilled the three conditions outlined above would establish state liability and the state will have to provide requiring reparation. Based on the findings of the case it was concluded that both the above cases arrived at the same conclusion. In the C-66/95 The Queen v The Secretary of State for Social Security, ex parte Eunice Sutton case however the ECJ emphasised that it was up to the national courts to assess the amount of damage. The national court was expected to apply the principle of equivalence and effectiveness when deciding on the extent of reparation provided. Based on this a member state found to have breached community law could still avoid compensating the affected individual because of the exclusion or restrictive approach to state liability for judicial breaches in account of the legal certainty and res judicata principle. Legal certainty principle emphasized on the need to bring disputes to a final conclusion and once a dispute has been resolved, the decision can no longer be challenged based on the res judicata principle. This was applied in the C-224/01 Kobler case to decide if the state was liable for the damage suffered because it failed to legislate in accordance to Article 48 of free movement of workers. Words: 948 Bibliography:
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