University of London

Common Law Reasoning and Institutions

Essay Title: 6 Attaining a representative judiiary is diffiult !ut neessary
to ensure pu!li onfidene in t"e rule of law and to avoid deision partial
to one partiular segment of soiety#$
%tudent no# &''((()&*
E+am Candidate no# ,-,-'
Introdution
The principal of jurisdiction in England and Wales are the practical authority granted to a
formally constituted legal body or to a political leader to deal with and make pronouncements
on legal matters and, by implication, to administer justice within a defined area of
responsibility. The courts exercise three type of jurisdiction are first instance, on appeal and
supervisory which is the proceeding are by the way of judicial review. Unfortunately, there is
no jurisdiction is prefect and balance in this world especially in national court in Engalnd and
Wales. Thus, the European ourt of !ustice "E!# to ensure that the law is observed in the
interpretation and application of the Treaties of the European Union and of the provisions laid
down by the competent ommunity institutions. To enable it to carry out that task, the ourt
has broad jurisdiction to hear various types of action. The ourt has competence, among
other things, to rule on applications for annulment or actions for failure to act brought by a
$ember %tate or an institution, actions against $ember %tates for failure to fulfill
obligations, references for a preliminary ruling and appeals against decisions of the ourt of
&irst 'nstance "renamed as the (eneral ourt#
E! is the highest court of the European Union in matters of Union law, but not national law.
't is not possible to appeal the decisions of national courts to the E!, but rather national
courts refer )uestions of EU law to the E!. *owever, it is ultimately for the national court to
apply the resulting interpretation to the facts of any given case. +lthough, only courts of final
appeal are bound to refer a )uestion of EU law when one is addressed. The treaties give the
E! the power to consistent application of EU law across the EU as a whole.
,
Therefore, it has placed great importance upon the uniformity of application of ommunity
law in the $ember %tates, and the desire to see that the ommunity was not weakened by
diversity in interpretation or application.
-
The E! has, on a number of occasions, taken the view that the supremacy of ommunity
law is implicit in the obligation imposed upon $ember %tates by +rticle ,..
Member States shall take all appropriate measures, whether general or particular, to
,
/ibliography 0o. 1, pg 21
-
/ibliography 0o. ,, pg 13
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ensure fulfilment of the obligations arising out of this Treaty or resulting from action
taken by the institutions of the Community. They shall facilitate the achievement of the
Community's tasks.
They shall abstain from any measure which could eopardise the attainment of the
obectives of this Treaty.!
3
Van Gend en loos C 26/62
The 7utch courts seeked advice from E! whether +rt -8 of the Treaty had direct effect. The
E! took this opportunity to declare that 9the ommunity constitutes a new legal order in
international law, for whose benefits the %tates have limited their sovereign rights albeit
within limited fields.:
4
Costa v ENEL (Case 6/64) [1964] ECR 585
osta argued that the nationali;ation of the 'talian electricity industry was contrary to
ommunity law. E0E< and the 'talian government argued that this was irrelevant, since the
'talian courts were obliged to apply the later 'talian law under nationali;ation was legal. The
E! ruled that ommunity law was part of the legal systems of $ember %tates and had to be
applied by national courts. There had been a transfer of sovereignty to the ommunity and it
was integral to this new legal system that ommunity law took precedence over later,
inconsistent national law.
5
A!n!st"a#!one delle $!nan#e dello %tato v %!ent&al %'A (%!ent&al (() (Case
1)6/**) [19*8] ECR 629
'n Simmenthal Sp" v #talian Minister of $inance %Simmenthal #& "ase 185=6# >,3=6? E@
,A=, that a fee charged on %immenthal:s imports of beef into 'taly was contrary to
ommunity law on the free movement of goods. The 'talian court ordered the gee to be
repaid but the +mministra;ione delle &inan;e appealed. Under 'talian lawm the
constitutionality of the law imposing the gee had to be referred to the onstitutional ourt.
The 'talian court referred the issue to the E!. The E! stated expressly that a national court
1
/ibliography 0o. 2
2
@eference 0o. 1, pg 2.
@eference 0o. 1, pg 2.
8
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should disapply national legislation which conflicted with ommunity law, without waiting
for it to be repealed by legislation or other means.
+rt -12 provides a tool for a national court to seek clarification from the E! as to the
meaning or validity of ommunity law. The E! argued that its effect would be limited if the
national court did not then apply ommunity law in accordance with the ruling of the ourt
of !ustice.
6
Co!ss!on v +el,!- (Case **/69) [19*)] ECR
'n this case, the /elgian government had attempted to reform a timber tax which the
ommission had indicated to be in contravention of ommunity law. The E! held that this
was not a valid defence from the /elgian government that its national law forced it to do so
or that it had particular problems in complying.
$a.to"tae (( Case
'n ' v Secretary of State for Transport e( parte $actortame )td, the validity of the provision
of the UB $erchant %hipping +ct ,3AA was aroused which the applicants claimed were in
contravention of directly enforceable ommunity rights. 'nterim relief had been granted in
the form of a suspension of the disputed parts of the +ct. The ommunity law gradually
prevailed over inconsistent domestic legislation.
The E! ruled that despite the provisions of national law, the national legislation could and
should be suspended pending a conclusive ruling on its validity. @ights under ommunity
law could not be truly effective if those who sought to enforce them were prejudiced by the
operation of the allegedly conflicting national legislation while the issue was being resolved.
Therefore, we can noticed that all the $ember %tates have surrendered their absolute national
sovereignty and right to legislate and ommunity law will prevail over national laws. This
position is subject to two provisos. &irst, sovereignity may be regained by withdrawing from
the ommunityC and secondly, in those areas where the ommunity has no competence, such
asD defence, etc.
6
@eference 0o. 1, pg 2.
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(nte"nat!onale /andels,esells.&a0t 1/ (Case 11/*))
'n this case, the ourt was concerned with a conflict between and E regulation and
provisions of the (erman constitution protecting fundamental rights. Under (erman law, the
constitution was superior to a statute.
The E! took a strong view and insists that the legality of a ommunity act cannot be
nullified by national law. The (erman onstitutional ourt was concerned about the lack of
protection for fundamental rights within the ommunity. Until this change, the fundamental
rights provision of the (erman constitution would take priority. This would not mean that
they would rule on the validity of a ommunity act, but rather they would conclude that such
a measure could not be applied in (ermany.
=
The E! has repeatedly used +rt ,. to emphasi;e the fundamental obligation upon $ember
%tates to implement ommunity legislation, so that it receives uniform application
throughout the ommunity.
Conlusion:
E! has supreme authority in relation to decisions that concern European law. it does not
have authority over matters that solely concern domestic law. $ain purpose in relation to the
doctrine of precedent is to ensure that European law is applied consistently throughout
member states of the European Union. Ene of the main ways this is achieved is through the
preliminary ruling procedure under article -12.
The court also acts as arbiter between the EUFs institutions and can annul the latterFs legal
rights if it acts outside its powers.
The national courts, in as much as they retain jurisdiction to review the administrative
implementation of EU law, for which the authorities of the $ember %tates are essentially
responsibleC many provisions of the Treaties and of secondary legislation G regulations,
directives and decisions G directly confer individual rights on nationals of $ember %tates,
which national courts must uphold.
The ourts of $ember %tates have adapted to the principle of supremacy of EU law which is
due in part to the persuasive judgments of the E! following the mechanism in +rticle -12
@eference 0o. 1, pg 28
=
@eference 0o. 1, pg 28
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@eference 0o. 1, pg 22, 26which permits a national court to seek clarification from the E! as to
the meaning or validity of ommunity law.
A
+lthough the ommunity law is always supreme for most of the cases, $ember %tates may
also declare the jurisprudence of the E! as incompatible, such asD ' v Secretary of State for
*mployment e( p *C+ ",332#, *< of United Bingdom, #nternationale case in (ermany and
$ragd case in 'taly.
7espite the jurisdictions are trying to maintain perfect and any of the parties to the
proceedings before the court of the member state may ask the court to seek a ruling on a
)uestion of EU law, no parties ever has any right to insist that a re)uest for a ruling shall be
made. 7efinitely E! will be terrific but the problem is that the national governor who is in
power may be never let it happen because they will not be able to rule. 4olitics in is an ugly
thing G the person who wanted to have the authorities for the country gets deviated from the
right path once he is in power. 't is as evil as money.
",8-= words#
Referenes:
,. 7eards E. H *argreaves %., I<earning Text G European <awJ, /lackstone 4ress, h 1
-. %teiner !., ITextbook on E <awJ, =
th
ed, /lackstone 4ress h 8
1. uthbert $., IKH+G EU <awJ, avendish 4ublishing <td
2. httpD55www.enotes.com5topic5ostaLvLE0E<
A
@eference 0o. 1, pg 22, 26
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