Preliminary Ruling-Art 267 and doctrine of state liabilty

There are two parts of questions, the first part discussed about preliminary ruling; Art 267 TFEU roles and ability of ECJ reject cases. There are also discussion on court of last instance and the obligation of Art 267(3) TFEU, and Art 267(2) discretion to refer by the court.

Whereas the second part of the questions is about, the doctrine of state liability established in Francovich, and how the doctrine were interpreted in later cases. Also member states but escaped from paying the loss suffered by the individual affected by the breach.

The first part of questions as follows.

Preliminary ruling procedure, Art 267 TFEU linked as bridge between the national courts and the ECJ so that a national court, when dealing with a particular case concerning EC law able to make reference before ECJ. The Art 267 TFEU makes it possible for national courts to communicate with ECJ. The objectionable of this procedure is to ensure uniform application of the EC law throughout the Community.[1]

Initially, Court of justice stated that it was up to member states consider whether reference was necessary, Da Costa (28-30/62). As the number of cases before the court of justice increased and abundant backlog rose up, the court of justice been stimulate to start considering whether all the reference were entirely necessary. So the court considered validity of some references and seldom refused references, in its own reason as of abuse of the system. This to reduce substantial unnecessary cases from overload the Eu legal system, saved money and time.

Such example of case ,Foglia v Novello is crucial concerned a contract wine between French buyer and Italian supplier where court of justice refused the reference of the stipulated clause on the ground there are no genuine dispute between parties.[2]

Other than that, where the court also refused jurisdiction in Meilicke ADV/ORGA (C-83/91).The court of justice held that the reason for that refusal because limited information provided, involved in directive addressed to member states, which beyond challenge of individual via Art 263 TFEU, likely influenced Ecj in its decision. There also arises questions on whether European court of justice justified in refusing reference.[3].

Moving on, discussions about Ecj in its approach to exceptions to the duty to refer of courts ‘against whose decisions there is no judicial remedy. The related statutory provision are Art 267(2) and Art 267(3).These are courts of permissive and Mandatory Jurisdiction where distinction between ‘’may’’ and ‘’must” refer respectively highlighted in both jurisdiction.[4]

Under Art 267(3)TFEU ,court or tribunal of member state against whose decisions there in no judicial remedy under national law may bring before ECJ. Such examples of cases as follows, Da costa (28-30/62) ,Costa v Enel (6/64) and CILFIT (283/81) which essentially required there be materially identical question to be resolved before a national court of last instance can be reassured of the obligation to refer.[5]

From CILFIT case, which refers Art 234(3) not accurate one and guidelines which the court of justice laid down in CILFIT, would relieve the national court of the obligation to make reference, suggest that national courts have more discretion than that provided by Art 267 TFEU. [6]

In this judgement, the ECJ set the conditions where the national courts of the highest instance may chose to refrain from making a preliminary ruling procedure.[7]

The ECJ ruled that “a court or tribunal against whose decisions there is no judicial remedy under national law is required, where a question of Community law is heightened before it, to comply with the obligation to bring the matter before the Court of Justice, unless it has established :-

[a] the question raised is irrelevant or

 [b] That the Community provision in question has already been interpreted by the Court or

[c] That the correct application of Community law is so obvious as to leave no scope for any reasonable doubt.”[8]

The French principle of acte clair is that national court need not make any reference when the EU law is so clear that the consequence of the case is not doubt. Although this point is now confirmed in the 2011 guidelines (OJ2011 C160/01), the court of justice also provided in CILFIT that before the obligation to refer satisfied,, the national court should be ensure that outcome would equally understandable to the courts in other member state, by taking account on different usage of language which in practice would be close to if not impossible to achieve. Hence, the view that only materially identical cases not require reference is made.[9]

The court of last instance which appropriate ruling on validity are governed by art 267(3) and the court of justice confirmed that declaration of validity must be referred but equally if a decision on validity has already been made on the same provision. This has general effect which all court may follow (see the ICC case (66/80).

The other case, Kobbler(c-224/01) and Traghetti (C-173/03) have re-accentuate obligation of last instance court to refer rather than rely on acte Clair. Thus when interpreting EC law, the national courts of last instance do not have their hands as wide open as they only interpreting national law. It should stress that the national courts of last instance do interpret the provisions of Eu law nevertheless; their scope of interpretation is substantially diminished by the CILFIT conditions.[10]

Whereby, lower national courts requiring interpretation have discretion to refer but would also able to apply previous judgements of the court of justice. Whilst not expressly stated, the application of the Da costa principle would be logical.
 In Foto-Frost(314/85) lower court with question of validity have discretion to refer or appealing to higher court to decide the matter examined that they necessary to do so. As mentioned, guidelines of 2011 and the Zuckerfabrik case (C-143/88) and (C-92/89), provided exception where urgent matter required provisional measures suspending the application of an EU measure whilst preliminary ruling was sought.

The second part of discussion as follows.

The ECJ recognised  Francovich  where ruled principle of state liability for breaches of EU  law  built in the EU legal system .The principle was further developed in Brasserie du Pêcheur and Factortame.[11]

Francovich v Italy (1990) C-6/90 ,Italian government liable to pay compensation to individuals when the member state's failure to implement an EU directive 80/987 which contained guidelines of law regarding protections for the employees in the event where the insolvency of employees.[12] In Francovich, the ECJ indicate that full effectiveness of Eu law be impaired and protection of the rights, which individuals derive from it, be depleted if individuals unable to obtain remedies when their rights are infringed by a breach of EC law for which a Member State can be held responsible.[13]

On the basis Francovich brought in conditions, citizens are able to sue for non-implementation of directive .Firstly, directive should grant rights to individuals. Secondly, should be possible to identify content of the rights on the wording of the measure. Final condition is that, there should be causal link between the breach of member state and loss or damages suffered by the individuals. When these conditions satisfied the individual may successfully continue against member state for failure to implement the directives and causes substantial loss.[14]

In Brasserie du Pecheur v Germany and Factortame v UK (C-46 and 48/93) the Ecj extended the principle of state liability to all violations whatever organ of the state causes the infraction.

 Besides that ,jurisprudence has determined how serious the breach to incur state liability and such evidence of the case would be British Telecommunication plc (1996) in which involved failed claim alleged improper implementation of council directive 90/153. It was said that UK implementing contrary to directives and therefore error was held excusable although the relevant provision of the directive were sufficiently unclear.[15]

Other than that, Brinkman (1998) ECJ an incorrect tax classification by Denmark was not sufficiently serious to found liability and the same mistake of interpretation made by the member state. By looking at both cases, its evidence that member state has discretion to decide what action to be taken in implementation or what are the excusable errors allowed which resulting standard of fault for liability will be higher. This causes the compensation harder to gain. It has to make sure that in order to impose liability against state, the obligation of member state to implement directives clear and the breach of non-implemented must be obvious.[16]

Other than that ,Traghetti del Mediterraneo v Italy (2006) , where Ecj rejected a requirement of intentional fault in case of state liability for loss suffered by individual by reason to an infringement of community law attributable to national court adjucating at last instance could incurred in exceptional case where court manifested infringed applicable law.¹⁷

From all those cases ,seen clear link between direct effect and state liability but can it be said that state liability deliver one purpose and cause to ineffectiveness of horizontal direct effect.

There are those that would argue that, indeed true as lack of horizontal direct effect means certain EU law rights given to individuals are not protected, and additionally, obligations placed on individuals aren’t sustained.

As a result of the unfairness produced it is only reasonable that these individuals are able to seek compensation, and as the State at misdeed for not enforcing these EU rights, should be liable for any loss suffered. Therefore, it can be said that State Liability was created only to amend the injustice caused by not allowing horizontal direct effect.

On the other hand, it can be argued that State Liability is necessary principle of EU law as it also applies in situations of direct effect and in situations where national courts have made incorrect decisions on EU law. Based on the various circumstances in which State Liability applies, it can be said that it is a principle created not only for situations of horizontal direct effect, but to generally ensure that individual’s EU rights are upheld, and where these rights are not upheld or protected, that the individual is able to seek compensation for any loss suffered.[17]

In conclusion, doctrine of State Liability is genuine contribution ensuring that individuals can enforce rights conferred. To say that State Liability exists only to opposing ineffectiveness of horizontal direct effect. These there are many other situations in which State Liability applies and is useful are not given any importance. Personally, this as it allows individuals to be compensated in a various circumstances where the rights handed to them by EU law not protected or upheld.

Words:2000 words

Bibliography

1.      Website: http://www.coe.int/t/dghl/cooperation/lisbonnetwork/Themis/Civil/Paper3_en.asp: Judicial Cooperation in civil matters :State liability for judicial Breaches of Community Law (accessed on 15 April 2015)

2.      Nigel Foster (F),Eu Law Q&A,Edition:2013 &2014,Chapter 5’’ Jurisdiction of the court of justice’’Publisher:Oxford University Press,Year:2013

3.      BBC ONLINE NEWS Website:http://news.bbc.co.uk/1/hi/world/europe/8160808.stm, Date updated :21July 2009,(accessed on 13 April 2015)

4.      Website :Ivanarose.weebly.com/article-267.html,Law Revision:Art 267 Preliminary Rulings,(accessed on 14 April 2015)

5.      Website: http://www.coe.int/t/dghl/cooperation/lisbonnetwork/Themis/Civil/Paper3_en.asp: Judicial Cooperation in civil matters :State liability for judicial Breaches of Community Law (accessed on 15 April 2015)

6.      Tony Storey and Chris Turner,Unlocking EU law 3^rd edition,:7.5.6 Academic Reaction to Acte Clair,Publisher:Routledge,NY ,Year2011

7.      Jessica Guth(G) and Tim Connor(G),EU Law Express,Chapter 5:Enforcement in the member states:Direct Effect,Indirect Effect and State Liabilty,Published:Pearson Education Limited ,Year:2012

8.      August Reinisch(R) ,Essential EU Law,Chapter: Effect of Union Law ,4.9 Are there any remedies if directives are not directly effectives

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[1]Website: http://www.coe.int/t/dghl/cooperation/lisbonnetwork/Themis/Civil/Paper3_en.asp: Judicial Cooperation in civil matters :State liability for judicial Breaches of Community Law (accessed on 15 April 2015)

[2] Nigel Foster (F),Eu Law Q&A,Edition:2013 &2014,Chapter 5’’ Jurisdiction of the court of justice’’Publisher:Oxford University Press,Year:2013

[3] BBC ONLINE NEWS Website:http://news.bbc.co.uk/1/hi/world/europe/8160808.stm, Date updated :21July 2009,(accessed on 13 April 2015)

[4] Website :Ivanarose.weebly.com/article-267.html,Law Revision:Art 267 Preliminary Rulings,(accessed on 14 April 2015)

[5] Nigel Foster (F),Eu Law Q&A,Edition:2013 &2014,Chapter 5’’ Jurisdiction of the court of justice’’Publisher:Oxford University Press,Year:2013

[6] Nigel Foster (F),Eu Law Q&A,Edition:2013 &2014,Chapter 5’’ Jurisdiction of the court of justice’’Publisher:Oxford University Press,Year:2013

[7] Website: http://www.coe.int/t/dghl/cooperation/lisbonnetwork/Themis/Civil/Paper3_en.asp: Judicial Cooperation in civil matters :State liability for judicial Breaches of Community Law (accessed on 15 April 2015)

[8] Website: http://www.coe.int/t/dghl/cooperation/lisbonnetwork/Themis/Civil/Paper3_en.asp: Judicial Cooperation in civil matters :State liability for judicial Breaches of Community Law (accessed on 15 April 2015)

[9] Tony Storey and Chris Turner,Unlocking EU law 3^rd edition,:7.5.6 Academic Reaction to Acte Clair,Publisher:Routledge,NY ,Year2011

[10] Website: http://www.coe.int/t/dghl/cooperation/lisbonnetwork/Themis/Civil/Paper3_en.asp: Judicial Cooperation in civil matters :State liability for judicial Breaches of Community Law (accessed on 15 April 2015)

[11] Jessica Guth(G) and Tim Connor(G),EU Law Express,Chapter 5:Enforcement in the member states:Direct Effect,Indirect Effect and State Liabilty,Published:Pearson Education Limited ,Year:2012

[12] Jessica Guth(G) and Tim Connor(G),EU Law Express,Chapter 5:Enforcement in the member states:Direct Effect,Indirect Effect and State Liabilty,Published:Pearson Education Limited ,Year:2012

[13] Website: http://www.coe.int/t/dghl/cooperation/lisbonnetwork/Themis/Civil/Paper3_en.asp: Judicial Cooperation in civil matters :State liability for judicial Breaches of Community Law (accessed on 15 April 2015)

[14] Jessica Guth(G) and Tim Connor(G),EU Law Express,Chapter 5:Enforcement in the member states:Direct Effect,Indirect Effect and State Liabilty,Published:Pearson Education Limited ,Year:2012

[15] Jessica Guth(G) and Tim Connor(G),EU Law Express,Chapter 5:Enforcement in the member states:Direct Effect,Indirect Effect and State Liabilty,Published:Pearson Education Limited ,Year:2012

[16] Jessica Guth(G) and Tim Connor(G),EU Law Express,Chapter 5:Enforcement in the member states:Direct Effect,Indirect Effect and State Liabilty,Published:Pearson Education Limited ,Year:2012

¹⁷ August Reinisch(R) ,Essential EU Law,Chapter: Effect of Union Law ,4.9 Are there any remedies if directives are not directly effectives

[17] Nigel Foster (F),Eu Law Q&A,Edition:2013 &2014,Chapter 5’’ Jurisdiction of the court of justice’’Publisher:Oxford University Press,Year:2013