Court Justice The European Union.

Introduction

The European Union has accomplished a great success in the last fifty years. Today, it has become a common market with uniform currency, its own parliament and expanding through inclusion of many states. The Court of Justice of the European Union is considered as one of the most important institution for assimilating the European Union. One of its critical influence of the institution is the preliminary ruling. In simple terms, ‘Preliminary rulings’ refers to a verdict of the European court of justice for the interpretation of any European Union law. Any court or tribunal of a European union member state may submit its request to the European Court of Justice for interpretating any provisions of the European union law. It is pertinent to note here the decision provided by the European Court of Justice is the final ruling. The court or tribunal is obligated to apply the ruling as there is no scope for further appeal. Article 267 of the TFEU outlays the situations where the court of justice of the European Union has jurisdiction to give preliminary proceedings. If a any question arises before a court or tribunal before a member state and it is essential to provide a decision to such question the court may be requested to provide a ruling. It further necessitates that the European court of justice to deliver its decision immediately to pending cases where there is no judicial remedy before a national court or tribunal.

Background

The European Economic Community in 1959 was created by six European nations. The treaty of Rome established the Court of Justice of the European Union. Initially, the main obligation of the CJEU was to hear the cases related to the European Economic Community and later relating to the European law. Generally, the cases can be submitted to the CJEU in two ways: directly or through the preliminary references. When any private litigant submits a case before the national courts and claims that the determination of the European law is relevant to such case, the situation of the preliminary references arises. Thereafter, the national court approaches the CJEU for its advisory opinion for the interpretation of an European Union law. The national court makes the final ruling after the CJEU has passed its opinion.

Importance

The concept of the preliminary ruling is fundamental because of the it acts as mechanism to secure legal unity, expands the legal framework and helps in safeguarding and protecting the rights of an individual. The structure of referring to the Court of Justice by the European Union by the national courts is crucial to the law and also influences the economic and political factor. The integration of Europe happens in one place as it permits the domestic judicial forum to compels European Union law over domestic law.

Subject Matter of the Preliminary rulings

The national courts or tribunals makes a request before the Court of Justice of the European union only for the interpretation or the validity of the European law. The jurisdiction of CJEU is limited as it does not have the authority to answer the questions concerning national law rule interpretation or any problems that may arise from the main proceeding. A question is only eligible to be submitted before the CJEU if it is having any legal framework.

There are certain factors that is required to be fulfilled before they become eligible to be observed as preliminary reference. A violation should be made that makes the issue associated with the European Union law. In order to accomplish this situation such an opportunity should be created. An individual or any institutional actor must have violated the national law or the European law and which provides the opportunity to raise the question of reference to the CJEU. It is important that the individual or the institutional actor should take the court before the CJEU.

The preliminary reference consists of questions that relates to the law of the European Union. This includes both question of facts and questions of law of the concerned case.In the case of Arsenal Football Club v Reed (C-206/01) it was held that the Court of Justice the European Union would deliver the correct interpretation and ruling of the case and refer it back to the domestic courts. The next step is the domestic courts will refer the decision provided by the CJEU.In the case of Irish Creamery Milk Suppliers v Ireland (C36 & 71/80) it was held that the domestic courts will have the power to control the timing of the references. However, it is pertinent to note here that all the references should be only be made by the national courts and the parties has no role to play in this regard. There is no procedure of appeal.

Domestic Courts or Tribunal eligible to submit the cases

The whole concept of submission of the cases to the International court of justice for the European union is fully a union concept. In the case of Dorsch Consult (C-54/96), the definition of the term ‘court’ or ‘tribunal’ gas been provided. It has been held that the court or tribunal must be a permanent body which should be set up in conformity with law. It must be an independent body and should exercise compulsory judicial functions. The domestic court or tribunal must have should regulate as per the common adversarial system. Their function should be to settle the cases falling under their jurisdiction by applying the legal rules. In the case of Vaassen (61/65) it was held that the Dutch Arbitration tribunal which was a private appointed arbitration body by the private nine employees social security fund also has the authority to refer the case to the Court of Justice of the European Union.

Many scholars have criticised this structure arguing that the multinational trade interests ultimately decide the usage of the preliminary ruling process. It is pertinent to note that access of the private litigants to the legal framework of the European Union was through the passage of the two fundamental doctrines namely, the direct effect and supremacy. As a result, it gave the opportunity to the transnational business to directly challenge the law of the European Union that were against the interest of their business. The transnational business are fundamental to them as they helped in creating their market business that ultimately helps in to remove the cross-border trade. The removal of the trade barriers creates more usage of the European law than the usual one. This has increased the submission of request for the reference to the International court of justice of the European Union for preliminary ruling challenging the European laws. Thereby, it has led to increase a lot more of the transnational activity. On the other hand, many scholars argue that the national courts are predominantly responsible using it. In spite, of being successful in its theoretical efforts the International court of justice of the European Union has failed in its systematic empirical work. There is no solid evidence to show that all the explanations provided by the International court of justice of the European Union in its preliminary rulings have proved to be correct. There is no presence of the judicial review of the opinions passed by the International court of justice of the European union. This legal framework has a significant role to play over the willingness of the domestic courts to make the preliminary references in the first place. Many scholars have criticised the fact that the domestic courts who are competent for a judicial review to declare whether the European law is consistent or not tends to depend more on the decision of the International court of justice of the European Union. Public opinion is a fundamental factor for influencing the decision provided in the domestic courts and indirectly equally influences the preliminary rulings. This is significant to protect the rights of the people though it this concept is still novel to the common masses.

In future, it is important that the full legal framework provided in Article 267 should integrate the adequate procedures in the transformation of the cases when it arises to the ultimate references. The public should be more politically informed in order to be get protection of their legal rights.

The Rome treaty or the European Economic Treaty mainly focus on establishing a common market for all. It promotes the free movement of all the factors of production, namely – capital, goods, service and persons. The terminology ‘common market’ has been named as an internal market. It is pertinent to note that the Article 3(3) along with Article 26(1) and 26(2) of the Treaty on the Functioning of the European Union provides the legal framework of the internal market.The main purpose of the free movement of goods is to pull apart the existing barriers to trade and also remove the new barriers to trade.

framework of the internal market.The main purpose of the free movement of goods is to pull apart the existing barriers to trade and also remove the new barriers to trade. The barriers to trade can be distinguished into two categories: Pecuniary barriers Non-pecuniary barriers

The freedom of movement of goods requires the removal of the both these kinds of barriers. Article 28 to Article 30 of the Treaty on Functioning of the European Union provides the regulations relating to the removal of the custom duties. Article 110 of the same treaty provides the regulation for the removal of the discriminatory national taxation. Both of them falls into the category of pecuniary barriers. In simple terminology, pecuniary refers to the monetary or fiscal issues namely- tax, levy, charges, etc. For removing the non-pecuniary barriers the two important features are quantitative restrictions as well as the measures that are equivalent to the quantitative restrictions as provided in Article 34 of the Treaty on the Functioning of the European Union. It refers to the requirements of quotas, marketing and selling.

In the current case, it is pertinent to note that Denmark is a member state of the European Union. By applying the definition of goods as held in the case of Commission v Italy (Re Export Tax on Art Treasures) (7/68) alcohol and uncooked fish can be considered as goods as they can be calculated in terms of money and are also competent to be a part of the commercial transaction.

Article 30 of the T.F.E.U provides that the application of custom whether on the goods imported or the goods to be exported should be prevented by all the member states. This highlights the facts that Denmark being a member state is not eligible to apply the custom duties. In addition to this, the provision also extends to all the charges that is equivalent to the custom duties.

In the case of Commission v. Italy (Re statistical levy) (24/68)-this case has clarified “charges that is equivalent to the custom duties”. It signifies any charge whether a pecuniary charge or whatever its mode or application is that is unilaterally imposed both on the domestic goods and the foreign goods. The provision Article 30 T.F.E.U clearly highlights that no member state is eligible to make any difference between the domestic goods and the foreign goods.

Earlier In the case of Haahr Petroleum (C-90/94) an issue arose that the imported goods where charged at a higher rate than the domestic products. In Bobie (127/75) it was stated that the member states were using different kinds of means to calculate the taxation applicable for the domestic goods and the imported goods. Similarly, in the case of Commission v Ireland (Re Excise Payments) (55/79) it was stated that different conditions were set up for the payment of tax or the grant of the tax for the imported products. However, such discrimination is no more permissible. Moreover applying the doctrine of mutual recognition as recognised in the case Cassis de Dijon (120/78) provides that once any good has been introduced in the market in any of the member states lawfully it must be permitted in other member states without any further restrictions or applied conditions.

Certain exception are permitted to the prohibition of the measures which have an equivalent effect to that of the quantitative restrictions. Article 36 of the T.F,E.U provides that the member states of the European Union are permitted to apply certain quantitative restrictions. These restrictions are allowed when the circumstances can be justified by the either general or economic considerations. For instance, public morality, public health or public safety. However, it is pertinent to note that such restrictions must be based on genuine and should have a direct effect on the public interest. It cannot go against the principle of proportionality. It is important to strictly interpret any kind of exceptions that is applied to the common principle. The national measures cannot be applied randomly so that it result into an arbitrary decision so as to restrict the trade between the member states.

There are three kinds of exhaustive list that can be found in Article 36. In the first scenario we find the list that intends to protect the public interest. Secondly, it can be seen that it permits the elimination of hindrances to safeguard the domestic industry. Thirdly, it encourages the principle of proportionality, that points out the comprises the test of necessity and suitability.

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In the famous case of Cassis de Dijon (120/78), the famous rule of reason or the mandatory requirement has been pointed out that “Obstacles to movement within the Community (now Union) resulting from disparities between the national laws relating to the marketing of the products in question must be accepted in so far as those provisions may be recognised as being necessary in order to satisfy mandatory requirements relating in particular to the effectiveness of fiscal supervision, the protection of public health, the fairness of commercial transactions and the defence of the consumer.” Through the inclusion of this case, limitation has been made applicable to the free movement of goods though in a proportionate manner.This signifies that the member states have the authority to make certain exceptions for protecting the public interest. However, it is important for the member states to notify the commission before any such exemption is made applicable. Therefore, as to the uncooked fish products including salted, pickled and smoked fish that is being sold over the summer months. As the uncooked fish has been identified source of the food poisoning and it is a possible threat to the public health from a close perusal of Article 36 of the T.F.E.U it can be stated that quantitative restrictions can be imposed on the goods imported. In this situation, Denmark can propose to impose a health inspection on uncooked fish imports upon their arrival and is also legally permissible to proposes to charge a fee for the inspection as an exceptional circumstance. It also has the authority alternatively to restrict the sale of uncooked fish.