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* I would like to thank the Center for European Studies at Harvard University, the European Court of Justice and the Court of First Instance of the European Communities in Luxembourg, and the Legal Service of the European Commission in Brussels, without whom the completion of this project would not be possible. Thanks also go to Professor J.H.H. Weiler, Professor Anne-Marie Slaughter, Henri Etienne, and Charlotte Kim, whose advice was extremely valuable.
The title is taken from Edmund Kelly's book, Evolution and Effort, and their Relation to Religion and Politics (1898).
1. Kenneth Frederick Cutsforth and others, Trading as For Amusement Only (Hull) v. Mansfield Inns Ltd. [1986] 1 CMLR at 11 (Sir Neil Lawson J, English High Court, Queen's Bench Division).
2. SYNOPSIS OF THE WORK OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES IN 1971 (Luxembourg: Office for Official Publications of the European Communities, 1972) at 8.
3. Thijmen Koopmans, La Procedure Prejudicielle -- Victime de son Success?, in F. Capotori, et. al. (eds.), DU DROIT INTERNATIONAL AU DROIT DE L'INTEGRATION -- LIBER AMICORUM PIERRE PESCATORE 287 (1987); Thijmen Koopmans, The Future of the Court of Justice of the European Communities, 11 Y.B. OF EUR. L. 15 (1991); J.H.H. Weiler, The European Court, National Courts and References for Preliminary Rulings -- The Paradox of Success: A Revisionist View of Article 177 EEC, in Henry G. Schermers, C.W.A. Timmermans, and A.E. Kellerman (eds), ARTICLE 177 EEC: EXPERIENCES AND PROBLEMS (Amsterdam: North-Holland, 1987), 366, 368-369; Jose Luis de la Cruz Vilaca and Luis Miguel Pais Antunes, The Court of First Instance of the European Communities: A Significant Step towards the Consolidation of the European Community as a Community Governed by the Rule of Law, 10 Y.B. OF EUR. L. 1 (1990) at 14.
4. The Court of First Instance (referred to hereinafter as the "Tribunal") has jurisdiction to hear all cases brought by natural or legal persons. Council Decision 94/149 of 7 March 1994, O.J. L66/29 of March 1994. It is prohibited from hearing preliminary rulings and actions brought by Institutions or Member States.
5. "Treaty" hereinafter refers to the Treaty on European Union (TEU). Article 177 TEU reads as follows:
the Court of Justice shall have jurisdiction to give preliminary rulings concerning:
(a) the interpretation of this Treaty;
(b) the validity and interpretation of acts of the institutions of the Community;
(c) the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide.Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give ruling thereon.
Where any such question is raised in a case pending before a court or tribunal of a Member State, against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice.
6. J.H.H. Weiler, Journey to an Unknown Destination: A Retrospective and Prospective of the European Court of Justice in the Arena of Political Integration, 31 J. COMMON MKT. L. STUD. 417 (1993) at 421.
7. Pierre Pescatore, Address on the Application of Community Law in each of the Member States, Reports of the Judicial and Academic Conference, 27-28 Sept. 1976 (Luxembourg: Office for Official Publications of the European Communities, 1976) at VI-15.
8. Hjalte Rasmussen, The European Court's Acte Clair Strategy in C.I.L.F.I.T.; Or, Acte Clair, of Course! But What Does it Mean?, 10 EUR. L. REV. 242 (1984) at 252. These qualities have been noted frequently by the Court in its Article 177 jurisprudence. In Rheinmühlen, the Court stated that the preliminary reference procedure "is essential for the preservation of the Community character of the law established by the Treaty and has the object of ensuring that in all circumstances this law is the same in all states of the Community." C-166/73 Rheinmühlen Düsseldorf v. Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1974] ECR 33 at 38. And in Costa v. ENEL, the Court described the aim of uniform interpretation as served through a process of judicial "cooperation between the Court of Justice and the national courts." C-6/64 Costa v. ENEL [1964] ECR 614.
9. Koen Lenaerts, Form and Substance of the Preliminary Rulings Procedure, in Deirdre Curtin and Ton Heukels (eds.), INSTITUTIONAL DYNAMICS OF EUROPEAN INTEGRATION: ESSAYS IN HONOUR OF HENRY G. SCHERMERS (Dordrecht: Martinus Nijhoff, 1994), Vol. II, 357-358, 364.
11. This trend has been particularly true in criminal and employment tribunal cases. Reimer Voss, The National Perception of the Court of First Instance and the European Court of Justice, 30 COMMON MKT. L. REV. 1119 (1993) at 1124.
12. Regina v. Ministry of Agriculture, Fisheries and Food, ex parte Portman Agrochemicals, Ltd., 3 C.M.L.R. 18 (1994).
13. 30 COMMON MKT. L. REV. 1119 (1993), 1125-1126.
14. 11 Y.B. EUR. L. 15 (1991), 18-19.
15. J.H.H. Weiler, The European Court, National Courts and References for Preliminary Rulings -- The Paradox of Success: A Revisionist View of Article 177 EEC, in ARTICLE 177 EEC: EXPERIENCES AND PROBLEMS, 366, 368-369.
16. J.H.H. Weiler, 31 J. COMMON MKT. STUD. 417 (1993), 441-442.
17. Jean Paul Jacque and J.H.H. Weiler, On the Road to European Union -- A New Judicial Architecture: An Agenda for the Intergovernmental Conference, 27 COMMON MKT. L. REV. 185 (1990), 188-190.
18. Lenaerts at 358, quoting C-297/88 & C-197/89 Dzodi v. Belgium [1990].
19. 11 Y.B. EUR. L. 15 (1991), 16-23.
20. These figures, except for those on duration, were provided directly by the Registry of the Court of Justice in Luxembourg (Dec. 1994). (Duration statistics were drawn from the annual Synopsis of the Work of the Court of Justice.) My thanks go to the members of the staff of the Registry for their assistance.
21. Of 1322 actions, 1163 were brought by Community officials, 1112 in ten groups of related cases. For the sake of simplicity, the 1112 actions are treated as 10. Synopsis of the work of the Court of Justice of the European Communities in 1979 (Luxembourg, 1980) at 7. For more consistency with overall trends, the 1112 are treated here as simply ten cases.
22. 11 Y.B. EUR. L. 15 (1993), 17-18.
23. Approximately 95 of the cases brought in 1990, and 151 of the cases brought in 1993 concerned direct actions on milk quotas in the European Community. Registry of the Court of Justice of the European Communities, STATISTIQUES JUDICIAIRES (Luxembourg: Logiciel integre pour le traitement des informations du greffe, Feb. 1994), Table 1(b).
24. Koopmans has noted that a "regular flow of cases" tends to be established only after four or five years of membership. This observation was based on the experience of the six original Member States; the period applicable to newer signatories may be longer, however. 11 Y.B. EUR. L. 15 (1991) at 18. For a chart of the ratios plotted in Figure 2, see Appendix IV.
25. The first preliminary reference was brought in 1961, and resulted in the Court giving a ruling in C-13/61 De Geus v. Bosch [1962] ECR 45.
26. For a consideration of some factors which contribute to national court use of Article 177, see Part III, below.
27. STATISTIQUES JUDICIAIRES, Table 7(b).
28. Of the 381 cases brought, 95 were direct actions concerning European Community milk quotas.
30. For a discussion of how to reduce this effect, see the section on length of judicial tenure in Part III (B) (3), below.
31. In contrast to the four-fold increase in the ratio of cases brought to number of Member States, the ratio of Art. 177 actions brought to number of Member States has remained fairly constant. Again taking the years 1974, 1980, 1988, and 1993, the ratio of references brought to number of Member States is as follows: 6.8, 8.3, 10.8, and 10.6.
32. Interview with Hendrick von Holstein, Deputy Registrar of Judicial Affairs, Court of Justice of the European Communities, in Luxembourg (10 Nov., 1994).
33. K.P.E. LASOK, THE EUROPEAN COURT OF JUSTICE: PRACTICE AND PRACTICE, 2nd ed. (Butterworths: London, 1994), 101. David A.O. Edward, The Nature of the Community Judicial Process: How the Court of Justice Works as a Judicial Body, in Kirsten Thorup and Jens Rosenlov, eds., FESTSKRIFT TIL OLE DUE (Copenhagen: GEC Gads forlag, 1994) at 41.
34. Art. 20, Statute of the Protocol of the Court of Justice (hereinafter referred to as the "Statute of the Court"); Art. 103(3) Rules of Procedure of the European Court of Justice (hereinafter referred to as the "Rules" or "RP-ECJ"). Edward at 132. LASOK at 102.
37. Interview with Hendrick von Holstein, Deputy Registrar of Judicial Affairs, Court of Justice of the European Communities, in Luxembourg (10 Nov. 1994). Edward, 33-35. Art. 20, Statute of the Court.
38. Art. 29(2) of the Rules establishes that the language of the referring court is the language of the case for Article 177 actions. LASOK at 103.
39. The Council is invited to submit observations when the question referred involves the validity or interpretation of one of its acts. Art. 20 Statute; Art. 103(3) Rules. In practice, the Council is given notice of all references. LASOK at 101.
40. The Research and Documentation Division in Luxembourg now examines cases at this stage, to determine inadmissibility; the success of this reform is unknown at this point, however. Edward, 42-43.
42. The Court may form chambers of three or five judges. Art. 165 TEU. LASOK at 26.
43. Until 1994, the Report for the Hearing was printed in the European Court Reports. This practice has been discontinued, so that energies may be expended on publishing actual decisions. Edward, 52 (note 17).
45. 11 Y.B. EUR. L. 15 (1991) at 17.
46. Council of Ministers decision of 8 June 1993, under Article 168a(1) of the Treaty of Rome; reported in Weekly Proceedings 18/93 of the Court of Justice at 16.
47. Schermers, et. al., eds., ARTICLE 177 EEC: EXPERIENCES AND PROBLEMS.
48. 11 Y.B. EUR. L. 15 (1991), 17-18.
49. 11 Y.B. EUR. L. 15 (1991) at 18. See R. v. MAFF, ex parte Portman Agrochemicals, Ltd. 3 CMLR 18 (1994).
50. The usage of Art.177 differs between and within Member States. 31 J. COMMON MKT. L. STUD. 417 (1993) at 421.
51. All methods of normalizing the frequency with which particular Member States make references are problematic. Some suggestions on how to view these figures is contained in Appendix V, which demonstrates how population and GNP figures relate to the use of Article 177. A comparison with some measure of judicial activity within the Member States might also prove illuminating, although the problem of which national courts to consider remains.
52. C-83/91 Wienand Meilicke v. ADV/ORGA F.A. Meyer AG [1992] ECR I-487 (judgement of 16 July 1992). C-343/90 Lourenco Dias v. Director da Alfandega do Porto [1992] ECR I-4673 (judgement of 16 July 1992). C-322/90 Telemarsicabruzzo SpA v. Circostel [1993] ECR I-393 (judgement of 26 January 1993). Questions were also refused by the Court of Justice in C-244/80 Foglia v. Novello (No. 2), C-283/81 CILFIT v Ministry of Health [1982] ECR 3415, C-297/88 & C-197/89 Dzodzi v Belgium, Gmurzynska-Bscher v Oberfinanzdirektion Koln [1990] ECR I-4003, and C-24/92 Pierre Corbiau v Administration des Contributions (judgement of 30 March 1993). Advocate General Jacobs in C-316/93 Vaneetveld v. SA Le Foyer [1994] 2 CMLR 852 at 856, believes that these cases are not inconsistent with the Court's attitude that Article 177 should not be a formalistic process.
53. 11 Y.B. EUR. L. 15 (1991) at 18.
54. The attendees of a conference organized by the Centre of European Law at King's College, University of London (June 12, 1993), expressed general satisfaction with the operation of the preliminary reference system. Mads Andenas, ed., ARTICLE 177 REFERENCES TO THE EUROPEAN COURT -- POLICY AND PRACTICE (London: Butterworths, 1994) at 73.
55. John Vaux, Treasury Solicitor's Department, in Mads Andenas, ed., at 113.
56. 31 J. COMMON MKT. STUD. 417 (1993), 421-423.
59. See the managerial compliance theory of Abram Chayes & Antonia Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (1995; mimeograph), Chapter 1. When references are made, the national court is usually acknowledging that Community norms are dispositive, meaning that the Member State must, if necessary, shift its reasoning to fit that of the Court of Justice. When the national court accepts the ruling, "the compliance pull of Community law becomes formidable." 31 J. COMMON MKT. STUD. 417 (1993), 422-423; 100 YALE L.J. 2403 (1991).
60. 100 YALE L.J. 2403 (1991), 2418-2419.
61. Federico G. Mancini and David T. Keeling, From CILFIT to ERT: the Constitutional Challenge facing the European Court, 11 Y.B. OF EUR. L. 1 (1991).
62. 10 EUR. L. REV. 242 (1984) at 251.
63. 11 Y.B. EUR. L. 1 (1991) at 2.
64. C-28-30/62 Da Costa en Schaake NV v. Nederlandse Belastingministratie [1963] ECR 31. See C-332-333/92 & C-335/95 Eurico Italia Srl v. Ente Nazionale Risi [1994] 2 CMLR 580 (Da Costa gives national courts the choice not to refer if a prior decision on point exists, but is does not prevent them from making a reference if they feel it is necessary).
65. C-283/81 CILFIT v Ministry of Health [1982] ECR 3415.
66. 10 EUR. L. REV. 242 (1984), 242-243.
67. Indeed, the Court construed the meaning of "obvious" so narrowly, its satisfaction is not easily achieved, requiring as it does a comparison of different language versions of Community law, the consideration of terminology particular to Community law, and of the context of the Community law provision. 10 EUR. L. REV. 242 (1984) at 255. G. Federico Mancini and David T. Keeling, From CILFIT to ERT: The Constitutional Challenge Facing the European Court, 11 Y.B. EUR. L. 1 (1991) at 3; K.P.E. LASOK, THE EUROPEAN COURT OF JUSTICE: PRACTICE AND PROCEDURE, 2d. ed. (London: Butterworths, 1994), 563-564.
68. 11 Y.B. EUR. L. 1 (1991) at 5, citing 10 EUR. L. REV. 242 (1984) at 342ff.
69. C-314/85 Foto-Frost v. Hauptzollamt Lübeck-Ost [1987] ECR 4199.
70. 11 Y.B. EUR. L. 1 (1991), 5-6.
71. 18 EUR. L. REV. 121 (1993) at 125.
73. [1994] 3 CMLR 18 (English High Court (Q.B.D.), Brooke J).
74. The use of the preliminary reference procedure varies between Member States, but national courts have been willing to use the procedure. 31 J. COMMON MKT. STUD. (1993) at 421.
75. The last of these factors, that of juridical culture, is both the most abstract and possibly the most intriguing. In Germany, where the concept of juge legal predominates, the tendency to make references whenever an Community legal issue arises seems to be higher, reflecting the idea that for each type of case there exists a competent court. Thus, labor issues must go to a labor court, tax issues to a tax court, and Art. 177 TEU issues to the Court of Justice. See L. Neville Brown and Tom Kennedy, eds., COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES, 3rd ed. (London: Sweet & Maxwell, 1994), Table 6. On the other hand, in legal systems where judges often sit alone on the bench, as in the United Kingdom, the judges may have more confidence in their ability to interpret the law, European Community law included. Interview with Tom Kennedy, Head of the Information Office of the European Court of Justice, in Luxembourg (9 Nov., 1994). Unfortunately, a detailed analysis of these issues is beyond the scope of this study.
76. Office for Official Publications of the European Communities, SYNOPSIS OF THE WORK OF THE COURT OF JUSTICE AND THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES IN 1990 (1992). Note that the courts included here as "higher" courts are not necessarily the same as those "against whose decisions there is no judicial remedy under national law. Nevertheless, while not all of these courts are the supreme courts of Member States, appeal from these courts is extremely difficult, if not impossible; this is particularly true of the specialized German courts, and of the highest administrative courts of Belgium and France. For the purposes of this analysis, "higher" courts are the following: Belgium (Cour de cassation, Conseil d'Etat), Denmark (Hojesteret), Germany (Bundesgerichtshof, Bundesarbeitsgericht, Bundesverwaltungsgericht, Bundesfinanzhof, Bundessozialgericht), Greece (Council of State, Supreme Administrative Court), Spain (Tribunal Supremo), France (Cour de cassation, Conseil d'Etat), Ireland (Supreme Court), Italy (Corte Suprema di Cassazione), Luxembourg (Cour superieure de justice, Conseil d'Etat), Netherlands (Hoge Raad, Raad van State), Portugal (Supremo Tribunal de Justica, Supremo Tribunal Administrativo), United Kingdom (House of Lords).
77. 18 EUR. L. REV. 121 (1993) at 128.
78. 31 COMMON MKT. STUD. 417 (1993) at 421, citing J.H.H. Weiler, Dehousse, R. and Bebr, G., Primus Inter Pares, the European Court and National Courts: Thirty Years on Cooperation (The Florence 177 Project), Interim Report (European University Institute, mimeo) (1988).
79. 30 COMMON MKT. L. REV. 899 (1993) at 901.
80. Art. 2, Brussels Convention -- Protocol on the interpretation by the Court of Justice of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters. Codified version (1991).
81. P. Jenard, Report on the Protocols on the interpretation by the Court of Justice of the Convention of 29 February 1968 on the mutual recognition of companies and legal persons and of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters. (Signed at Luxembourg, 3 June 1971.) 5 March 1979, [1979], O.J. C59/66, Art. 11(1).
82. R. v. MAFF, ex parte Portman Agrochemicals, Ltd. [1994] 3 CMLR 18.
83. Jean Paul Jacque and J.H.H. Weiler, On the Road to European Union -- A New Judicial Architecture: An Agenda for the Intergovernmental Conference, 27 COMMON MKT. L. REV. 185 (1990), 192-194.
84. 18 EUR. L. REV. 121 (1993) at 128.
85. GERHARD CASPER AND RICHARD A. POSNER, THE WORKLOAD OF THE SUPREME COURT (Chicago, American Bar Foundation, 1976), 1-20.
86. HJALTE RASMUSSEN, ON LAW AND POLICY IN THE EUROPEAN COURT OF JUSTICE (Dordrecht: Martinus Nijhoff Publishers, 1986), 466-475.
87. Tom Kennedy, First steps towards a European certiorari?, 18 EUR. L. REV. 121 (1993) at 127.
88. The first paragraph of Article 168a TEU reads as follows:
A Court of First Instance shall be attached to the Court of Justice with jurisdiction to hear and determine at first instance, subject to a right of appeal to the Court of Justice on points of law only and in accordance with the conditions laid down in the Statute, certain classes of action or proceeding defined in accordance with the conditions laid down in paragraph 2. The Court of First Instance shall not be competent to hear and determine questions referred for a preliminary ruling under Article 177.
Article 168a(2) TEU provides that these "classes of action and proceeding" will be determined by unanimous Council decision, at the request of the Court of Justice, and after consulting the Commission and the European Parliament.
89. Timothy Millet, in ARTICLE 177 REFERENCES TO THE EUROPEAN COURT -- POLICY AND PRACTICE, Mads Andenas (ed.), (Butterworths: London, 1994) at 118; John Vaux, UK Treasury Solicitor's Office, in Andenas (ed.) at 113.
90. Millet, in Andenas (ed.) at 118.
91. 27 COMMON MKT. L. REV. 185 (1990), 195.
92. See, generally, 10 Y.B. EUR. L. 1 (1990). The Tribunal has now taken over all remaining direct private actions from the Court of Justice; the anti-dumping cases excluded from Council Decision 93/350 were added to the Tribunal's docket by Council Decision 94/149 of 7 March 1994 (O.J. L66/29 of 10 March 1994). European Courts: Judges -- and judgements, THE EUROPEAN ADVOCATE (Summer 1994) at 19.
93. Interview with Blanca Pastor, Registry of the Court of First Instance, in Luxembourg (10 Nov. 1994).
94. 27 COMMON MKT. L. REV. 185 (1990), 192-194. The recent accession of Austria, Finland, and Sweden might make the formation of five Regional Courts appropriate. Direct access to the European High Court of Justice (as the Court of Justice would be renamed under this plan) would also be extended to cases brought under 170 TEU, 173 TEU (brought by privileged plaintiffs), 100A(4) TEU, 180 TEU, 181 TEU, 182 TEU, 93 TEU, and opinions under 228 TEU. 27 COMMON MKT. L. REV. 185 (1990) at 192.
95. 27 COMMON MKT. L. REV. 185 (1990), 192-194.
96. Registry of the Court of Justice of the European Communities, 5 Dec. 1994; Proceedings of the Court of Justice and Court of First Instance of the European Communities, No. 34/94. Sixteen of these appeals were decided in 1994 alone.
97. This was the reaction of former Chief Justice Earl Warren, at the 1972 proposal by a Federal Judicial Center study group, to similar proposed reforms. CONGRESSIONAL QUARTERLY, INC., THE SUPREME COURT, JUSTICE, AND THE LAW, 2nd ed. (1977), 132-133.
98. Interview with Tom Kennedy, Head of the Information Office, Court of Justice of the European Communities (9 Nov. 1994, Luxembourg); interview with David Edward, Judge of the Court of Justice of the European Communities (10 Nov. 1994, Luxembourg).
99. 18 EUR. L. REV. 121 (1993).
100. Interview with Koen Lenaerts, Judge of the Court of First Instance, in Luxembourg (Nov. 9, 1994).
101. Koen Lenaerts, Form and Substance of the Preliminary Rulings Procedure, in Deirdre Curtin & Ton Heukels, eds., INSTITUTIONAL DYNAMICS OF EUROPEAN INTEGRATION: ESSAYS IN HONOR OF HENRY G. SCHERMERS, Vol. II, (Dordrecht: Martinus Nijhoff, 1994), 355-380.
103. Lenaerts draws a comparison to Article III of the US Constitution, and their focus on the "ripeness" of litigation, so to avoid entering into "abstract disagreements." Lenaerts, 379-380. See also Rasmussen, in Andenas (ed.) at 92.
104. C-93/78 Mattheus v. Doego Fruchtimport und Tiefkuhlkost eG [1978] ECR 2203.
105. Other cases in which the Court held that "no genuine dispute" existed upon which to rule include C-138/80 Borker [1980] ECR 815 and C-104/79 Foglia v. Novello [1980] ECR 745. RASMUSSEN at 479.
106. C-52/76 Luigi Benedetti v. Munari F lli S.A.S. [1977] ECR 163.
107. C-320-322/90. Lenaerts at 362.
108. C-157/92 Banchero; C-386/92 Monin Automobiles [1993] ECR I-2049 (new request filed on Oct. 25 1993, C-428/93). Lenaerts, 356-357, 362.
109. Kennedy notes that paras. 13-17 of the Dias decision are identical to paras. 21-25 of the Meilicke decision. 18 EUR. L. REV. 121 (1993), 124-125 (note 9). Article 92(1) of the Rules reads as follows:
Where it is clear that the Court has no jurisdiction to take cognisance of an action or where the action is manifestly inadmissible, the Court may, by reasoned order, after hearing the Advocate-General and without taking further steps in the proceedings, give a decision on the action.
110. C-244/80, Foglia v. Novello (No. 2) [1981] ECR 3045, para. 18.
111. 18 EUR. L. REV. 121 (1993) at 125.
112. Dias, quoting C-231/89 Gmurzynska-Bscher v. Oberfinanzdirektion Koln [1990] ECR I-4003 at 4017.
114. See, e.g., C-157/92 Banchero and C-320-322/90 Telemarsicabruzzo [1993] ECR I-393; Telemarsicabruzzo, which was ruled inadmissible by full judgement, took 28 months, and Banchero, which was declared inadmissible by order, took under ten months.
115. David Edward, The Nature of the Community Judicial Process: How the Court of Justice works as a judicial body, in Kirsten Thorup and Jens Rosenlov, eds., FESTSKRIFT TIL OLE DUE, 31-54 (Kobenhavn: GEC Gads forlag, 1994) at 37.
117. 30 COMMON MKT. L. REV. 613 (1993) at 619.
118. 30 COMMON MKT. L. REV. 1119, 1125-1126 (1993).
119. In the UK, no knowledge of Community law is required to qualify as either a barrister or a solicitor. In Ireland, knowledge of Community law is only required in the context of competition law examinations.
120. Conclusions, Seminar on Training of Judges in Community Law, European Centre for Judges and Lawyers and European Institute of Public Administration (EIPA), Luxembourg Antenna (15-16 Mar. 1993), 1 (mimeograph). Quoting Spyros A. Pappas, Director General of the EIPA; Agence Europe, 17/18 May 1993. Tom Kennedy commented that nothing concrete has been produced by the EIPA conference, and doubts that it will produce any legislation, but noted that the issue of education was noted in the Member States. Andenas (ed.) at 112.
122. This concern was recognized at the EIPA conference. EIPA at 4.
124. Lenaerts, 363-364.; interview with Koen Lenaerts, Judge of the Court of First Instance, in Luxembourg (Nov. 9, 1994).
125. Edward at 37. Tom Kennedy has commented that well-presented references make the Court's work considerably easier; he referred to one case in which a badly-drafted reference (in actuality, a mere order to forward the domestic case from the House of Lords) was withdrawn, rewritten, and resubmitted. Interview with Tom Kennedy, Director of the Office of Information of the European Court of Justice, in Luxembourg (Nov. 9, 1994).
127. Judges and other members of the staff at the Court generally acknowledge that the German courts are particularly careful in submitting references. Interviews, at the Court of Justice, in Luxembourg (Nov. 9-10, 1994), and at the Legal Service of the European Commission, in Brussels (Nov. 8 & 11, 1994).
128. Mark Clough and Derrick Wyatt, in Andenas, 115, 116-117; this committee would consider pre-reference order procedures and follow-through on the national court's decision after the Court of Justice ruling is made, as well as evaluating the form and content of the Article 177 procedure itself. Clough, in Andenas at 115.
129. Tom Kennedy has commented that the recent inadmissibility rulings (e.g. Meilicke, Dias, Telemarsicabruzzo, and Corbiau) reflect the Court's effort to encourage national courts to produce references in a form and with a content allowing the Court of Justice to fulfill its role under Article 177. Kennedy has noted that this opinion reflects a shift of perspective from his argument in 18 EUR. L. REV. (1993). Interview with Tom Kennedy, Director of the Office of Information of the European Court of Justice, in Luxembourg (Nov. 9, 1994).
130. John Vaux of the UK Treasury Solicitor's Department supports the idea of a "guide to best practice" for referring courts. This could be effected through jurisprudence or through a direction for practice. Andenas (ed.) at 113.
131. C-316/93 Vaneetveld [1994] 2 CMLR 852 at 856.
132. J.H.H. Weiler, in Schermers, et. al., eds., 366-378.
133. If either the Commission or any Member State requests a full hearing, the case cannot be expedited in this way. Weiler, in Schermers (ed.), ARTICLE 177 EEC (1987) 366, 376.
134. Edward rejects requiring an answer, as some of the courts referring do not have the ability to suggest a helpful solution, and might fear embarrassment. Interview with Edward. This is not a reason not to encourage submission of answers, however. Indeed, if no precedent-setting issue is at stake, a reference is not desirable or necessary.
135. Interview with Walter Van Gerven, former Advocate General of the Court of Justice, in Cambridge, Massachusetts (12 April 1994).
138. Art. 201(1), Rules of Procedure.
139. Interview with David Edward (10 Nov. 1994).
140. Art. 104 of the Protocol of the Statute of the Court of Justice provides an opportunity for the Court to choose to omit the "oral part" of preliminary reference procedures, if the parties implicitly agree. Protocol on the Statute of the Court of Justice of the European Economic Community as amended by Council Decision of 24 October 1988 Establishing a Court of First Instance. Rules of Procedure of the Court of Justice, 19 June 1991, O.J. 1991 L176/7. In all other cases before the Court, except for appeals from the Tribunal, the decision to dispose of the oral hearing must be made explicitly. Edward at 33. 18 EUR. L. REV. 121 (1993), 127-129.
141. Telemarsicabruzzo is an exceptional case in which the Court declined to give an answer after twenty-eight months; in that situation, the issue was not clear even after the oral hearing took place, demonstrating the Court's consistent effort to deliver rulings whenever possible. Interview with David Edward (10 Nov. 1994).
142. 18 EUR. L. REV. 121 (1993), 128-129.
143. Interview with Walter Van Gerven (12 April 1994).
144. Cf. the American attitude towards oral hearings. In the process of developing docket control for the American Supreme Court, opposition to the elimination of oral hearings was expressed in the Justice Department Committee on Revision of the Federal Judicial System, of January 1977. The Committee rejected the federal court means of coping with the flood of cases, in which decisions were made on the basis of written briefs alone, without explaining the reasoning behind the decision. Judges must be independent, the Committee argued, and confront litigants' arguments head-on, to demonstrate that their decisions are backed by reason and law. Otherwise, the reasoning went, an "erosion of the integrity of law and of the public's confidence in the law" may result. CONGRESSIONAL QUARTERLY, INC., THE SUPREME COURT, JUSTICE, AND THE LAW, 2nd ed. (Washington: Congressional Quarterly, 1977), 129-130.
145. C-230/83 Van Gend en Loos v. Commission [1984] ECR 3763.
146. According to this argument, the Court has interpreted the Statute of the Court to take into account special nature of Art. 177 proceedings. Art. 35 of the Statute states that, in general, "the Court shall adjudicate on costs." From its first preliminary ruling, De Geus v Bosch, the Court of Justice has consistently ruled that costs for parties of the main action linked to Art. 177 EEC rulings is for referring national court to decide. C-13/61 De Geus v Bosch (1962) ECR 45, 54. Ten years later, in Bollmann, the Court held that without an express provision, rules laid down for "contentious" proceedings cannot be applied to Article 177 proceedings. C-62/72 Bollmann v. Hauptzollamt Hamburg-Waltershof (1973) ECR 269 (in which the Bundesfinanzhof asked whether the recovery of costs is governed by domestic or Community law).
147. G. Bebr, The Preliminary Proceedings of Article 177 EEC -- Problems and Suggestions for Improvement, in Schermers, et. al., eds., ARTICLE 177 EEC, 345, 361-362.
148. C-157/92 Pretore di Genova v. Banchero. Art. 92(1), Rules of Procedure, OJ L176 4.7.91 (as corrected in OJ L383 29.12.92 p.117).
150. Art. 92, Rules of Procedure, 19 June 1991; O.J. 1991 L 176/7. The Court, in recitation 4 of the Order, made explicit reference to the inadmissibility standard noted in Telemarsicabruzzo v. Circostel (judgement of 26 Jan. 1993). C-386/92 Monin was also held inadmissible by order, on the same grounds as Banchero, for not meeting the Telemarsicabruzzo standards; a new request for a ruling was filed on 25 Oct. 1993, C-428/93. Lenaerts at 362.
151. The concerns here are similar to those relating to the use of oral hearings, opinions varying with the practice in national legal systems. Edward, 40-41.
152. Lenaerts, 366-367. There is a movement towards increased specificity in rulings. When facts and national law are not disputed, the Court of Justice is best to incorporate them into the ruling, rather than leaving the national court wondering. The United Kingdom Sunday trading cases are an example of the Court requesting further information, and incorporating law and facts as far as they are not disputed. Lenaerts, 367-368.
153. Article 165 TEU provides that the Court is permitted to sit in chambers of three or five judges "to adjudicate on particular categories of cases in accordance with rules laid down for these purposes." The petit plenum provides for the occasional difficulty of gathering the full bench at any given time. Edward at 35.
155. Advocate General Jacobs has commented that the three-judge chamber "does not always lead to a consistent practice," and predicted that the five-judge chamber will likely become standard practice, with the more important cases being heard by the full Court. "Few of our cases are really so trivial," Jacobs has remarked, "that they can really...be entrusted to a three-judge chamber." Andenas (ed.), 111-112.
156. Professor Neville Brown has argued that litigants should be satisfied with the decision of a single judge, at least in staff cases, commenting that what is good for the United Kingdom and Ireland should be for the Court of Justice. Paul Beaumont of the University of Aberdeen has responded that the probability that any involved Member State would allow a case go to a chamber is doubtful. Andenas (ed.), 111, 113-114.
157. In 1977, the American Congress approved over one hundred new federal district and several dozen new appeals courts seats. The Justice Department Committee on Revision of the Federal Judicial System of 1977 observed, however, that expanding the size of the judiciary is not possible indefinitely. Congressional Quarterly, THE SUPREME COURT, JUSTICE, AND THE LAW (2nd edition), 131-132.
158. Interview with Walter Van Gerven (12 April 1994).
161. The proposed Art. 167 TEU provided that both Judges and Advocates General "shall be appointed by the Council acting by qualified majority with the assent of the European Parliament for a term of twelve years," and that reappointment shall occur every six years, rather than every three. The proposed language also provided that "no member of the Court shall serve for longer than twelve years," as either Judge, Advocate General, or the two in succession. EUROPEAN PARLIAMENT, 1993 -- THE NEW TREATIES (Luxembourg: Office for Official Publications of the European Communities, 1991).
162. Article 104(1), Rules of Procedure.
163. Although a reference may be submitted in Irish as well, this has never been done.
166. Eileen Denza, House of Lords EC Committee, in Andenas, ed., at 119.
167. Neville Brown, in Andenas, ed., at 111.
168. Denza, in Andenas, ed., at 119.
169. Advocate General Jacobs, in Andenas (ed.) at 112.
170. Richard Wainwright has commented that this alternative would be considerably easier than achieving an agreement among the Member States or in the Council. In Andenas (ed.), 117-118.
171. Timothy Millett, in Andenas (ed.) at 118.
172. There are problems inherent in using any criteria for normalizing the use of references between Member States. These Tables are provided to suggest this difficulty, and to emphasize that the absolute numbers of referrals are misleading.
173. Reference figures up to 31 Dec. 1990. SYNOPSIS OF THE WORK OF THE COURT OF JUSTICE AND THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES IN 1990 (Office for Official Publications of the European Communities, 1992) at 113. Population figures at 1 January 1991; the population level for Germany refers to the situation after 3 October 1990 (post-unification). BASIC STATISTICS OF THE COMMUNITY, 30th edition (1992), 107.
174. The extent to which each Member State adjusted its legal system, prior to accession, may be an important factor in explaining these differences. Pierre Pescatore has considered rates of referral among Member States in this light, arguing that States in which there is controversy over the application of Community law are the origin of the most references: Germany, Belgium, France, and Italy. In Luxembourg and the Netherlands, issues concerning the application of Community law were settled before accession, thus explaining the scarcity of case law over the relationship between national and Community law. And in Denmark, Ireland, and the United Kingdom, Pescatore argues, legislation enacted before accession provided for the compatibility of domestic and European law. Pierre Pescatore, Address on the application of Community law in each of the Member States, Judicial and Academic Conference of the Court of Justice of the European Communities, 27-28 Sept. 1976 (Luxembourg: Office for Official Publications of the European Communities, 1976).
175. GNP and 177 TEU figures for 1990. WORLD TABLES 1993 (The International Bank for Reconstruction and Development/The World Bank, 1993), 121-631.
176. References made/all domestic cases concerning EC law.
177. Jonathan Golub, Rethinking the Role of National Courts in European Integration: A Political Study of British Judicial Discretion, EUI Working Paper LAW No. 94/12 (Badia Fiesolana, San Domenico: European University Institute, 1994) at 21.