Tuesday, January 24, 2006

Preliminary ruling procedure in need of reforms?

One of the arguably most famous provisions of the Treaty on the establishment of European Community is certainly Art 234 which provides for the so called preliminary ruling procedure. It enables national courts (and requires national courts against which there is no further judicial remedy) to refer a question of the interpretation of the Community law if this appears necessary to render a judgment in a particular case.

Preliminary ruling procedure is a cornerstone of the EU judicial system which is unparalelled in the world. National courts namely act simultaneously as EU courts, i.e. there is no special federal judicial system as this is the case in the comparable non-unitary statal organizations.

The procedure has worked extremely well and it has in recent years resulted in a literal overflow of cases from the Member States' courts. ECJ therefore became signficantly overburdened, extending the typical waiting time for a decision over 2 years. Since this waiting period might be already nearing the boundaries of the reasonable time period necessary for a decision, varius reform proposals of the procedure have been laid on the table. Thus, especially Advocates General have urged the ECJ to limit its jurisdictional scope and entrust more cases to the national courts. It was submitted that famous CILFIT, Foto Frost and Dzozdi line of cases should be reconsidered in order to cut the number of cases coming to ECJ every year (249 requests for a preliminary ruling in year 2004, for example). The Treaty of Nice enables the transfer of preliminary rulings in specific areas to the Court of First Instance, etc.

However, the ECJ firmly sticks to its precedents and it has by and large refused to follow the proposals by AGs. The Court apparently fears that unity and effectiveness of the Community legal order might get seriously impaired if the prelimary ruling procedure would become less rigid, leaving sligtly wider margin of appreciation to the national courts. The situation is certainly not an easy one, therefore it remains to be seen if a good and working middle way between the concern for uniformity of EU law and the reasonable time necessary to render a judgment might be found.

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