Preliminary Ruling under Article Essay

doubtfulness 1.EC fair play make and the depicted object code of the section States were integrated by the European society Treaties. As much(prenominal) the case solicits act in accordance with partnership integrity and link up baptistrys to the European salute of attendee. National judges play a headstone role in implementing Community legal philosophy of nature in their subdivision States. The forward p arntence system thus enables the national courts to comply with Community uprightness and maintain cooperation with the European Court of Justice. Under this system the national courts pertain slips for a plan of attack ruling to the ECJ, in accordance with the provisions of hold 234 EC .Article 234 EC contains the jurisdictional requirements for a exploratory reference. First, the referring installation has to be a court or tribunal of a Member State. Second, the referral should be in respect of Community laws stiffness or variation and finally, t he referring court or tribunal should determine whether at all there is a need to deliver a judgment, by the ECJ. In Bosman it was opined by the Advocate General Lenz that the ECJ can refuse to address a previous ruling request, if such(prenominal) a request manifestly bears no relation to the main action .The European Court of Justice is an autonomous body that is independent of any Member State or institution of the European Union. The major function of the ECJ is to interpret the Community Treaties and Community law in accordance with the spirit of the EU, and to implement the EC law, 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 .While hearing cases, if a engagement arises between the national legislation and the EC law, with regard to the application of the Community law the national courts should non decl atomic number 18 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 national courts refer cases to the ECJ for a preliminary ruling. A wide range of jurisdictional requirements have to be met by the ECJ in order to give a preliminary ruling. However, the ECJ can 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 issue was the right of sh areholders to obtain breeding from the company management, as per the provisions of leading 77/91/EEC. The Directive requires certain safeguards to be implemented by the Member States, so as to protect the interests of shareholders and former(a)s. The Member States have to act in accordance with the reciprocal ohm paragraph of Article 58 of the EC Treaty. The national court referred the case to the ECJ on the compatibility of the German Aktiengesetz with the Directive with regard to the process of forming public limit liability companies, their maintenance 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 accusatory was to determine whether the German legislation, in the context of treating certain cash percentage preceded or followed by the companys transactions of payment of amounts to shareholders, so as to offset 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 felt that it would be exceeding the cooking stove of its jurisdiction .The underlying principle involved is that the national courts have to refer novel and subtle questions, regarding the application and interpretation of EC law, plot of ground making a reference for a preliminary ruling. Subsequently, the ECJ would develop new case law, which would serve as a guideline to national judges and different legal professionals in the EU.National courts are expected to develop a pan European perspective and thereby contribute to the integrity of the Union. As such the ECJ does not compel 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 many cases. In some other cases it requires national courts to directly refer the cases to the ECJ by suspending the cases in the first type itself .Article 234 EC differentiates between pooh-pooh courts and national courts of last instance. The get national courts have discretion, whether to make a reference or not. The national courts of last instance are obliged to refer cases for preliminary reference, if the interpretati on of Community law was such that referral was warranted. Most of these cases originate in the lower national courts. Hence, they possess the discretion to refer the cases to the ECJ. The courts of last instance are under an agreement to make 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 hardiness 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 competent to declare EC law invalid 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 entire 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 tho consider the applicability and legality of Community legislation. A national court cannot declare that a piece of Community legislation is invalid. Hence it only the ECJ that can invalidate Community legislation or an act of an EC institution .In Gaston Schul Douane-expediteur and International Air charge Association the ECJ reiterated that the national courts were under an obligation to seek a preliminary reference from it. In Gaston, ECJ ignored 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 front decision on a similar subject, it had given the like decision, out-of- pocket to the fact that a specific piece of EU legislation would be declared invalid. dubiousness 2 aThe Employment Tribunals are competent to refer cases, under Article 234 EC, to the ECJ, whenever a clarification 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 disciplinary mission 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 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 the issue to be irrelevant and incontestable and consequently, unfit to be referred to even the House of Lords. Therefore, th e issue is definitely not to be referred to the ECJ. In the gunk Mara Fashion Group case, no questions had been submitted for a reference. Further 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 positive(p) that it has comprehended the piece of legislation under consideration. Since, there is no infract of EC law by the national law, nor is there any obstruction 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 purpose was only restricted to fact finding . As such the ECJ requires a verification of all the facts before filing a reference with it. Moreover, the al-Qaeda Office is not a judicial body. Therefore , the Home Office cannot refer to the ECJ, in order to ascertain whether the Iranian bookman is to be deported or not.BibliographyCase 314/85, Foto-Frost v Hauptzollamt Lbeck-Ost (1987) .Case 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 Between National Courts and the European Court of Justice in the European Union Judicial System forward Ruling Regimes According to Articles 234 EC, 68 EC, and 35 EU. Febru ary 2007. 3 February 2008.