Free Law Dissertations - "the Courts Of This Country Cannot Challenge Rulings Of The Ecj Within Its
"The courts of this country cannot challenge rulings of the ECJ within its areas of competence. There is no advantage to be gained by appearing to do so. Furthermore, national courts do not make references to the ECJ under Article 234 of the EC Treaty with the intention of ignoring the result. On the other hand, no matter how tempting it may be to find an easy way out, the High Court has no power to cede to the ECJ a jurisdiction it does not have."
Laddie J. in Arsenal Football Club PLC v. Reed (No.2) [2003] 1 All ER 137
Article 234 (ex 177) is essential for the Community character of the law established by the Treaty and has the object of ensuring that in all circumstances, EC law is given the same interpretation in the National courts of every Member State. The procedure has been significant in the development of EC law as the EC Treaty is merely a framework which is filled out by the definitions, details and rulings of the European Court of Justice (ECJ) which has led to the creation of procedures which illustrate the provisions of the Treaty. The powers given to the ECJ are derived from Treaties that have been agreed on by the Member States of the Community, therefore the above statement is very accurate as no national court has any power to dictate and determine the jurisdiction of the ECJ. The High Court of England and Wales only has a limited power to apply for reference to the ECJ as it is not the highest court in the land, thus it would be especially erroneous for the High Court to make any assumptions or interpretations pertaining to jurisdiction of the ECJ or EC law as a whole. The relationship between the UK National courts and the ECJ are vertical and multilateral as it exists on the recognition of the supremacy of EC law and its precedents and the expectation that the ECJ will remain at the apex of the judicial hierarchy within the Community.
Jurisdiction of the National Courts of England and Wales
Jurisdiction is the authority which a court has to judge actions that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of the courts are generally outlined in and imposed by charter, statute or commission under which the court is constituted and may be extended or restricted by similar means. In regards to an Article 234 reference, there is a requirement to distinguish between the discretionary and mandatory jurisdiction. Mandatory jurisdiction affords no discretion for courts/tribunals against whose decisions there is no judicial remedy under national law, a reference must be made. However, under discretionary jurisdiction other courts have discretion as to whether to apply or not to the ECJ for a ruling. A reference only becomes incumbent upon a discretionary court when an error is found during proceedings or there is a question of validity of EC law which the ECJ must interpret.
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