2008 | 1(25) | 73-92
Article title

RIGHTS AND DUTIES OF NATIONAL COURTS CONNECTED WITH REFERRING QUESTIONS FOR PRELIMINARY RULINGS TO THE COURT OF JUSTICE OF THE EC (Uprawnienia i obowiazki ..w zakresie ..wniosku o orzeczenie Trybunalu Sprawiedliwosci Wspólnot Europejskich)

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The most important instrument of the cooperation between the Court of Justice of the EC (further ECJ) and national courts is the institution of preliminary rulings, regulated in art. 234, art. 68 of the EC Treaty and art. 35 of the EU Treaty. In many judgements, the ECJ indicated that it concerns the 'judicial cooperation' through which 'the national court and the Court of Justice, both keeping within their respective jurisdiction, and with the aim of ensuring that community law is applied in a unified manner, make direct and complementary contributions to the working out of a decision'. The analysis of the rich jurisprudence of the ECJ in the matter which organs are included in the scope of notion 'court or tribunal' according to art. 234 of the EC Treaty, leads towards the conclusion that the ECJ applies the widening interpretation of the notion 'court or tribunal' on the purpose to provide the wide range of organs to profit from the benefit of the institution of preliminary questions. There are however judgements of the ECJ, in which it denied its jurisdiction to give the preliminary ruling. Such view it took mainly in cases in which the preliminary questions were submitted by administrative organs, by common courts acting as registration organs and not exercising judicial actions and by arbitration bodies (but the last ones - not in every case). Article 234 of the EC Treaty makes a distinction between those courts and tribunals, which have a discretionary jurisdiction to bring the preliminary reference to the ECJ and are under the scope of paragraph 2 of art. 234 and those courts and tribunals which are in question of paragraph 3 of this article, i.e. are obliged to bring the preliminary reference. Under the provision of art. 234 (2) of the EC Treaty, the national court keeps the whole discretion of appreciation. The judge of the national court has the possibility to choose the way of proceeding; he may ask the ECJ about the interpretation but he doesn't have to do it. In the last case, the judge may interpret by himself the community law and apply it in the case which is to decide. On the other hand, art. 234 (3) makes the national court to bring the question to the ECJ in case when the court or tribunal is the one 'against whose decisions there is no judicial remedy under national law'. There appears the question about the category of organs which are included in the scope of notion from paragraph 3 of art. 234; there is a polemic on this subject in the doctrine. It seems necessary to mention that the parties of the case pending before the national court are not competent to decide on reference of preliminary questions to the ECJ, the latter prerogative belonging to these courts only.
  • Joanna Zieba, Instutut Nauk Prawnych PAN, ul. Nowy Swiat 72, 00-330 Warszawa, Poland
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