The admissibility of the preliminary ruling proceedings and the rephrasing by the CJEU

Transcription

1 The admissibility of the preliminary ruling proceedings and the rephrasing by the CJEU Alain GROSJEAN Sofia Seminar 25 th and 26 th september

2 The admissibility of the preliminary ruling proceedings and the rephrasing by the CJEU Introduction Jurisdiction of the ECJ Reception of the Preliminary Ruling Judicial nature of the referring body Scope of the questions Absence of clear provision Hypothetical nature of a question unrelated to the object of the dispute Fictitious nature of the dispute Processing of questions Flexibility in the choice of questions Widening of the referenced norms Rephrasing of the question by the ECJ The ECJ limits its judgment to an interpretation while the validity of a Community nom has been questioned by the National Court The ECJ assesses validity while only the interpretation of the norm has been raised by the National Court Pigs Marketing Board case and the Court s prerogatives in maters of preliminary ruling Reception by the National Court 2

3 Introduction The ECJ ensures the uniform interpretation of European Law in a Europe with 28 Member States and more than 500 millions citizens. The Court can also appreciate the validity of an act. Preliminary ruling proceedings is the main activity of the Court. Preliminary ruling guarantees that the Union Law has the same effect in every Member State. Under article 267 of Treaty on the Functioning of the European Union: The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union; 3

4 Introduction If the Court estimates that the question is outside the scope of Community norms invoke its lack of jurisdiction. If its incompetency is obvious, the Court will refuse the preliminary ruling by way of order under article 104 paragraph 3 of its Rules of Procedure. 4

5 Jurisdiction of the ECJ The Court limits its own jurisdiction. it is not for the Court to determine whether the decision whereby a matter is brought before it was taken in accordance with the rules of national law governing the organization of the courts and their procedure (ECJ, case 143/99, 14 th January 1982) The Court does not have to hear a case that has been legally brought before the referring jurisdiction regarding the jurisdiction rules set by Brussels I bis Regulation. Its control can result in a refusal to assess the questions raised by the referring jurisdiction for three different reasons: Its lack of Jurisdiction By declaring the inadmissibility of the question By judging that there is no need to adjudicate 5

6 Jurisdiction of the ECJ Opinion of Advocate General Wahl in case C-497/12: In 2014, 40 cases out of 428 ended with the Court finding a lack of jurisdiction regarding the questions raised by the national jurisdiction. - National jurisdictions have a tendency to question the conformity of their national laws with the European Law by referring to large number of provisions without explaining their relevance to the matter. 6

7 Reception of the Preliminary Ruling The Court does not have jurisdiction to comment on provisions of a national law that do not constitute the implementation of a provision of Community Law; or to state on the facts of the litigation; or to state on the compatibility of a national law with Community Law; or when the questions fails to outline the facts that justify them. 7

8 Judicial nature of the referring body Under Article 267 of the Treaty on the Functioning of the European Union, the question must be raised by a jurisdiction. Thus the Court must assess the judicial nature of the body raising the question. the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent (CJUE, case 53/03, Syfait E.A.) 8

9 Scope of the questions Sources of the Community Law: EU Treaties; Acts from the EU institutions; EU international agreements; Charter of Fundamental Rights of the European Union (granted by the Treaty of Lisbon with a legal value identical to that of the Treaties); The Court also has jurisdiction in the field of judicial cooperation in criminal matters and police cooperation since the 1 st of December 2014 (after a five years period following the entry into force of the Treaty of Lisbon). 9

10 Absence of clear provision The national judge that raises a question has to define the factual and legal context of the question. He must explain the factual hypothesis on which the question is based. He must bring to the attention of the ECJ all the elements that could have an influence on the interpretation of Union Laws. Although the Court has been provided with some information by the file submitted by the national court and the written observations, as is clear from the Report for the Hearing, and by the oral observations of the parties at the hearing, that information is fragmentary and does not enable the Court, in the absence of adequate knowledge of the facts underlying the main proceedings, to interpret the Community competition rules in the light of the situation at issue, as it has been requested to do by the national judge. (ECJ case-320/90, 26 th January 1993) 10

11 Hypothetical nature of a question unrelated to the object of the dispute Accordingly, where the national court' s request concerns the interpretation of a provision of Community law, the Court is bound to reply to it, unless it is being asked to rule on a purely hypothetical general problem without having available the information as to fact or law necessary to enable it to give a useful reply to the questions referred to it (ECJ, case 137/92, 27 th October 1993) The ECJ also refuses the questions which are unrelated to reality or to the object of the litigation. 11

12 Fictitious nature of the dispute Two private individuals who are in agreement as to the result to be attained and who have inserted a clause in their contract in order to induce the Italian court to give a ruling on the point. (ECJ, case 104/79, 11 th March 1980) The ECJ also specified in several cases that the fictitious nature has to clearly reflect the factual elements raised in the referring judgment and in addition they added that the fact that the parties are economically bound does not deprive the dispute from its genuine nature. 12

13 Processing of questions Flexibility in the choice of questions Preliminary rulings rarely end with a reject of the question thank to the flexibility adopted by the Court in its processing of the questions. First the Court is not bound by the order of the questions brought by the national jurisdiction and can, therefore, refuse to assess a question if the answer of a previous question makes it irrelevant. Having regard to the answers given to the first, fourth and sixth questions, there is no need to reply to the third and fifth questions. (ECJ, case 160/01, 15 th may 2003) Or In view of the reply given to the first question the second question is no longer relevant. (ECJ, case 422/00, 16 th January 2003) 13

14 Widening of the referenced norms The ECJ can interpret provisions that has not been targeted by the question raised by the national jurisdiction so as to give a useful answer. However, in order to provide the national court with an appropriate answer for the purpose of the application of community law in the dispute before it, it must be considered whether an exception or derogation such as provided for in article 12 ( 2 ) of regulation no 14/64 and article 20 ( 2 ) of regulation no 805/68 should not be recognized on the basis of other provisions of community law. (ECJ, case 70/77, 28 th June 1978, Simmenthal) 14

15 Rephrasing of the question by the ECJ The ECJ limits its judgment to an interpretation while the validity has been questioned by the National Court The Court has complete authority to limit its decision to the interpretation of a Community provision while the validity of a provision has been questioned by the national Court. Given that reading of Regulation No 804/68, it is not necessary to examine ( ) the validity of that regulation with reference to the principle of non-discrimination (ECJ case 334/95, 17 th July 1997) 15

16 The ECJ assesses the validity while only the interpretation has been raised by the National Court The ECJ is incompetent to state on the compliance of a national provision with the Community Law, however it supplies to the national jurisdiction all the relevant elements of interpretation in order to bring a solution to the dispute. This rephrasing might be seen as theoretical. The Court refuses to judge the compatibility or incompatibility of a national provision to the Community Laws but the Court holds that the Community Law prohibits or does not prohibit the application of a national norm of the kind of the one involved in the case pending. 16

17 Pigs Marketing Board case and the Court s prerogatives in matters of preliminary rulings The ECJ stated its opinion in relation to rephrasing the questions in the case Pigs Marketing Board. In this case the national Jurisdiction added to its referring judgment a letter in order to explain and precise the questions. The court is free to extract from all the factors provided by the national court and in particular from the statement of grounds contained in the reference, the elements of community law requiring an interpretation - or, as the case may be, an assessment of validity - having regard to the subject-matter of the dispute (ECJ, case 83/76, 19 th november 1978, Pigs Marketing Board) 17

18 Reception by the national Court The tribunal of Lilles (France) refused, in its decision of the 15 th 1981, to follow the ruling of the Court arguing that: July it is legally unfounded that, after having interpreting the Community law in order to assess the questions, the Court, that had exhausted its jurisdiction, took the initiative to add to its consultation an observation based on a irrelevant text to the matter. Far from only being a supplementary precision useful to its work of interpretation the Court s initiative appears as a deliberate manifestation of a choice supporting the principle of legal certainly over the one of legality. 18