New prospects for relations between the Court of Justice and national courts

Everyone knows the fundamental role of the Court of Justice in the construction of a European legal space. Indeed, thanks to its preliminary rulings which guide the work of national courts when they are called upon to enforce community law. Over the decades, the dialogue between European and national courts has ensured an increasingly faithfully interpretation of community law as well as the development of a true common legal culture.

After all, what value might have fundamental rights to stakeholders if judges are not capable to secure their correct application?

In this regard it must be recognised that the increased synergy between European and national judges (acting in this case as ‘European’ judges) together with the new powers of European Court of Justice in the area of freedom, security and justice resulted by the entry into force of the Treaty of Lisbon will definitely increase individual’s rights in this domain.

For example, in the field of police and judicial cooperation in criminal matters (the so-called “third pillar”), before the entry into force of the Lisbon Treaty, the Court’s ability to issue preliminary rulings relied upon Member States’ discretion on the basis of Article 35 of the Treaty on European Union (*). Indeed up to the 30 November several of these Member States did not accept the Court’s competence competence.

Another example relates to the domains ‘communitarised’ in 1999 with the Treaty of Amsterdam (immigration, borders, asylum and judicial and criminal cooperation). Although in this case the situation was a bit better, Article 68 TEC (**) limited the possibility to obtain pre-trial interpretation only to judges of last appeal.

With the Treaty of Lisbon this situation has radically changed. With a Communication  appeared in the Official Journal on 5 December, the European Court of Justice has published a series of apparently non-binding guidelines aimed at establishing a daily relation between national and European judges.

In this regard, the guidelines concerning the urgent preliminary ruling procedure related to the area of freedom, security and justice are particularly interesting. They state:

The procedure is governed by Article 23a of Protocol (No 3) on the Statute of the Court of Justice of the European Union (OJEU 2008 C 115, p. 210) and Article 104b of the Rules of Procedure of the Court of Justice. National courts may request that this procedure be applied or request the application of the accelerated procedure under the conditions laid down in Article 23a of the Protocol and Article 104a of the Rules of Procedure.”

Conditions for the application of the urgent preliminary ruling procedure

33. The urgent preliminary ruling procedure is applicable only in the areas covered by Title V of Part Three of the TFEU, which relates to the area of freedom, security and justice.

34. The Court of Justice decides whether this procedure is to be applied. Such a decision is generally taken only on a reasoned request from the referring court. Exceptionally, the Court may decide of its own motion to deal with a reference under the urgent preliminary ruling procedure, where that appears to be required.

35. The urgent preliminary ruling procedure simplifies the various stages of the proceedings before the Court, but its application entails significant constraints for the Court and for the parties and other interested persons participating in the procedure, particularly the Member States.

36. It should therefore be requested only where it is absolutely necessary for the Court to give its ruling on the reference as quickly as possible. Although it is not possible to provide an exhaustive list of such situations, particularly because of the varied and evolving nature of the rules of European Union law governing the area of freedom, security and justice, a national court or tribunal might, for example, consider submitting a request for the urgent preliminary ruling procedure to be applied in the following situations: in the case, referred to in the fourth paragraph of Article 267 TFEU, of a person in custody or deprived of his liberty, where the answer to the question raised is decisive as to the assessment of that person’s legal situation or, in proceedings concerning parental authority or custody of children, where the identity of the court having jurisdiction under European Union law depends on the answer to the question referred for a preliminary ruling.

However, it must be pointed out that these new competences will not be applied before five years  in the area of police and judicial cooperation in criminal matters for acts adopted before the entry into force of the Treaty of Lisbon (art. 10 Protocol 36).

Also with this temporally exception it is nonetheless clear that a new phase has now started also for European judges. The interpretation of community law can now be based on an even more authority Court which in turn can rely on the Treaty and the binding Charter on Fundamental Rights binding for all the institutions, including European and national judges.

EDC

(*) EX Article 35 (TEU)
1. The Court of Justice of the European Communities shall have jurisdiction, subject to the conditions laid down in this Article, to give preliminary rulings on the validity and interpretation of framework decisions and decisions, on the interpretation of conventions established under this Title and on the validity and interpretation of the measures implementing them.
2. By a declaration made at the time of signature of the Treaty of Amsterdam or at any time thereafter, any Member State shall be able to accept the jurisdiction of the Court of Justice to give preliminary rulings as specified in paragraph 1.

3. A Member State making a declaration pursuant to paragraph 2 shall specify that either:

(a)any court or tribunal of that State against whose decisions there is no judicial remedy under national law may request the Court of Justice to give a preliminary ruling on a question raised in a case pending before it and concerning the validity or interpretation of an act referred to in paragraph 1 if that court or tribunal considers that a decision on the question is necessary to enable it to give judgment, or

(b) any court or tribunal of that State may request the Court of Justice to give a preliminary ruling on a question raised in a case pending before it and concerning the validity of interpretation of an act referred to in paragraph 1 if that court or tribunal considers that a decision on the question is necessary to enable it to give judgment. Treaty on European Union 25

4. Any Member State, whether or not it has made a declaration pursuant to paragraph 2, shall be entitled to submit statements of case or written observations to the Court in cases which arise under paragraph 1.

5. The Court of Justice shall have no jurisdiction to review the validity or proportionality of operations carried out by the police or other law enforcement services of a Member State or the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.

6. The Court of Justice shall have jurisdiction to review the legality of framework decisions and decisions in actions brought by a Member State or the Commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of this Treaty or of any rule of law relating to its application, or misuse of powers. The proceedings provided for in this paragraph shall be instituted within two months of the publication of the measure.

7. The Court of Justice shall have jurisdiction to rule on any dispute between Member States regarding the interpretation or the application of acts adopted under Article 34(2) whenever such dispute cannot be settled by the Council within six months of its being referred to the Council by one of its members. The Court shall also have jurisdiction to rule on any dispute between Member States and the Commission regarding the interpretation or the application of conventions established under Article 34(2)(d).

(**) Article 68 TCE
1. Article 234 shall apply to this title under the following circumstances and conditions: where a question on the interpretation of this title or on the validity or interpretation of acts of the institutions of the Community based on this title is raised in a case pending before a court or a tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon.

2. In any event, the Court of Justice shall not have jurisdiction to rule on any measure or decision taken pursuant to Article 62(1) relating to the maintenance of law and order and the safeguarding of internal security.

3. The Council, the Commission or a Member State may request the Court of Justice to give a ruling on a question of interpretation of this title or of acts of the institutions of the Community based on this title. The ruling given by the Court of Justice in response to such a request shall not apply to judgments of courts or tribunals of the Member States which have become res judicata.

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