{"id":2922,"date":"2018-05-04T21:56:44","date_gmt":"2018-05-04T21:56:44","guid":{"rendered":"http:\/\/legalblog.ie\/ensuring-harmonious-application\/"},"modified":"2022-09-25T08:22:32","modified_gmt":"2022-09-25T08:22:32","slug":"ensuring-harmonious-application","status":"publish","type":"post","link":"https:\/\/legalblog.ie\/ensuring-harmonious-application\/","title":{"rendered":"Ensuring Harmonious Application [EU]"},"content":{"rendered":"<div id=\"ez-toc-container\" class=\"ez-toc-v2_0_63 counter-hierarchy ez-toc-counter ez-toc-grey ez-toc-container-direction\">\n<div class=\"ez-toc-title-container\">\n<p class=\"ez-toc-title \" >Table of Contents<\/p>\n<span class=\"ez-toc-title-toggle\"><a href=\"#\" class=\"ez-toc-pull-right ez-toc-btn ez-toc-btn-xs ez-toc-btn-default ez-toc-toggle\" aria-label=\"Toggle Table of Content\"><span class=\"ez-toc-js-icon-con\"><span class=\"\"><span class=\"eztoc-hide\" style=\"display:none;\">Toggle<\/span><span class=\"ez-toc-icon-toggle-span\"><svg style=\"fill: #999;color:#999\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" class=\"list-377408\" width=\"20px\" height=\"20px\" viewBox=\"0 0 24 24\" fill=\"none\"><path d=\"M6 6H4v2h2V6zm14 0H8v2h12V6zM4 11h2v2H4v-2zm16 0H8v2h12v-2zM4 16h2v2H4v-2zm16 0H8v2h12v-2z\" fill=\"currentColor\"><\/path><\/svg><svg style=\"fill: #999;color:#999\" class=\"arrow-unsorted-368013\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" width=\"10px\" height=\"10px\" viewBox=\"0 0 24 24\" version=\"1.2\" baseProfile=\"tiny\"><path d=\"M18.2 9.3l-6.2-6.3-6.2 6.3c-.2.2-.3.4-.3.7s.1.5.3.7c.2.2.4.3.7.3h11c.3 0 .5-.1.7-.3.2-.2.3-.5.3-.7s-.1-.5-.3-.7zM5.8 14.7l6.2 6.3 6.2-6.3c.2-.2.3-.5.3-.7s-.1-.5-.3-.7c-.2-.2-.4-.3-.7-.3h-11c-.3 0-.5.1-.7.3-.2.2-.3.5-.3.7s.1.5.3.7z\"\/><\/svg><\/span><\/span><\/span><\/a><\/span><\/div>\n<nav><ul class='ez-toc-list ez-toc-list-level-1 ' ><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-1\" href=\"https:\/\/legalblog.ie\/ensuring-harmonious-application\/#Preliminary_Reference\" title=\"Preliminary Reference\">Preliminary Reference<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-2\" href=\"https:\/\/legalblog.ie\/ensuring-harmonious-application\/#Subject_Matter_of_Reference\" title=\"Subject Matter of Reference\">Subject Matter of Reference<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-3\" href=\"https:\/\/legalblog.ie\/ensuring-harmonious-application\/#Qualifying_Bodies\" title=\"Qualifying Bodies\">Qualifying Bodies<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-4\" href=\"https:\/\/legalblog.ie\/ensuring-harmonious-application\/#Role_of_European_Court\" title=\"Role of European Court\">Role of European Court<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-5\" href=\"https:\/\/legalblog.ie\/ensuring-harmonious-application\/#Role_of_National_Court\" title=\"Role of National Court\">Role of National Court<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-6\" href=\"https:\/\/legalblog.ie\/ensuring-harmonious-application\/#The_position_of_Highest_National_Court\" title=\"The position of Highest National Court\">The position of Highest National Court<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-7\" href=\"https:\/\/legalblog.ie\/ensuring-harmonious-application\/#Interim_Suspension\" title=\"Interim Suspension\">Interim Suspension<\/a><\/li><\/ul><\/nav><\/div>\n<h3><span class=\"ez-toc-section\" id=\"Preliminary_Reference\"><\/span>Preliminary Reference<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The Court of Justice has jurisdiction to give preliminary rulings on points of European Union law.\u00a0 This covers matters of interpretation of the Treaties, EU legislation and measures by its institutions.<\/p>\n<p>Where a question is raised before any court or tribunal in a member state, it may refer the question of European Union law to the Court of Justice to give a ruling where this is necessary to enable it to give judgment in the matter.\u00a0 Where a question is raised in a case before a court or tribunal where there is no appeal (e.g. Supreme Court) the matter shall be referred to the European Court of Justice, where this is necessary.<\/p>\n<p>The national court will usually adjourn proceedings to refer the matter.\u00a0 The Court of Justice rules on the point of European law.\u00a0 It does not determine the ultimate case.\u00a0 When it makes its ruling, the matter is remitted to the national court in order to determine the case on the basis of the Court of Justice\u2019s interpretation of European Union law and to apply it in the case before the court.<\/p>\n<p>The parties to the original proceedings are not directly involved in the reference.\u00a0 They may make written or verbal submissions.\u00a0 Other interested entities such as the institutions of the European Union member states may make deposition known if they wish to.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Subject_Matter_of_Reference\"><\/span>Subject Matter of Reference<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Preliminary rulings seek to establish uniformity in the interpretation of European Union laws.\u00a0 If each state\u2019s courts were to apply European Union law in accordance with its own principles and traditions, significant divergence might arise.<\/p>\n<p>References may be made in respect of both the interpretation and validity of European Union law.\u00a0 The secondary legislation of the European Union may be found to be invalid with reference to the treaty or the EU\u2019s powers.\u00a0 The preliminary reference procedure may be used in respect of international agreements entered by the European Union, which create rights for citizens in states.<\/p>\n<p>The procedure does not apply to questions of the validity of the treaty itself.\u00a0 Judgments of the Court of Justice cannot be questioned.\u00a0 Certain matters of interpretation of measures relating to the maintenance of law and order and internal security may not be questioned.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Qualifying_Bodies\"><\/span>Qualifying Bodies<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>A reference may be made by any court or tribunal in a state.\u00a0 It must be a court or tribunal established by law.\u00a0 Parties may not provide by private agreement.\u00a0 The matter may be referred to the European Court of Justice.\u00a0 Accordingly, issues arising in arbitration proceedings may not be referred.<\/p>\n<p>In order to qualify, the body must be established by national law.\u00a0 It must be permanent, independent and judicial in nature.\u00a0 Its jurisdiction must be compulsory in the matters concerned.\u00a0 The procedure must be adversarial.\u00a0 It must give a decision of a judicial nature.<\/p>\n<p>Many quasi-judicial bodies under Irish law may be entitled to make reference. A body which performs administrative functions only and does not make judicial-type decisions does not qualify.<\/p>\n<p>Although private arbitration is not qualified for reference, certain public arbitration procedures may be the subject of a preliminary reference.\u00a0 This may apply in the context of employment relations and collective agreements where the decision is quasi-judicial in nature so that a reference may be allowed.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Role_of_European_Court\"><\/span>Role of European Court<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The Court of Justice determines the interpretation, scope and meaning of the provisions under EU law.\u00a0 It may consider whether national legislation gives proper effect to the EU law.\u00a0 They may determine the scope and effect of laws and whether they are directly effective.\u00a0 They may not interpret matters of national law.<\/p>\n<p>References are accepted in relation to questions of national law which refer directly and unconditionally to EU law.\u00a0 In the circumstances, the provision of EU law must be absolutely and unconditionally binding on the national courts.<\/p>\n<p>The Court of Justice assists the National Court.\u00a0 It rules on the matter of EU law in the abstract.\u00a0 However, of necessity, it will make its decision in the context of the particular circumstances and facts of the case.<\/p>\n<p>It is a matter for the European courts on reference to interpret European Union law.\u00a0 It is a matter for the national courts to apply it. However, it may be necessary for the European courts to make some element of substantive decision in order to give meaningful guidance to the national court.\u00a0 If its advice is too abstract, it may be of little use in its application to the circumstances.<\/p>\n<p>The Court of Justice\\&#8217;s decision on principle may be overturned in a future reference or case. A strict principle of precedent does not apply. If a matter has already been decided, a brief decision may be made referring to previous decisions.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Role_of_National_Court\"><\/span>Role of National Court<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>In courts other than those from which there is no appeal, there is a discretion as to whether or not to refer a matter of European Union law to the European Court. Neither the European courts themselves, institutions and\/or parties can force a reference.\u00a0 Equally, a judge may make a reference even if the parties do not request it.\u00a0 It is for the judge to decide at what point in the case, a reference should be made, if at all.<\/p>\n<p>There must be a genuine dispute between the parties in the national proceedings.\u00a0 If parties are not genuinely in dispute, they may not collude simply to have the European courts determine an issue.\u00a0 A hypothetical point will not be considered. The question of European Union law must be relevant to the dispute.<\/p>\n<p>The reference itself should set out the facts and the legal context.\u00a0 It should set out the reasons for the reference.\u00a0 In some cases, the facts will be more important than in others.<\/p>\n<p>Where the point of EU law is well-established, a reference is not required. It is not necessary for the final court to make a reference where the Court of Justice has already rendered an interpretation on the same question before.\u00a0 Where the question raised is materially identical to a question already raised, a preliminary ruling is not necessary.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"The_position_of_Highest_National_Court\"><\/span>The position of Highest National Court<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Courts in which there is no further appeal are obliged to refer matters of European Union law for a preliminary ruling.\u00a0 \u00a0\u00a0The requirement applies to courts from which there is no judicial remedy under national law.\u00a0 This in effect refers to the highest court such as the Supreme Court in Ireland or the Court of Appeal or the Supreme Court in some cases, in the United Kingdom.\u00a0 The English Court of Appeal takes the view that it is not a final court notwithstanding that leave or consent is required to apply to the House of Lords\/Supreme Court.<\/p>\n<p>The highest courts have some element of discretion to consider whether a referral is necessary.\u00a0 They need not make a reference where EU is not relevant to the dispute.\u00a0 Where the point of law is clear and has already been dealt with or is otherwise clear, a reference is not required.<\/p>\n<p>Where there is no doubt as to the correct application of European Union law, a reference need not be made.\u00a0 However, the matter must be clearly obvious and not just a matter of interpretation by the national court.\u00a0 It must be so obvious that there is no scope for a reasonable doubt.<\/p>\n<p>The courts must consider whether the matter is equally obvious to courts of other states in light of the differing circumstances, languages etc.\u00a0 The court should take account of the fact that the EU may use terminology and legal concepts at variance with those found in states.\u00a0 It must be conscious that EU laws must be interpreted in the context of the entirety of the European Union institutions.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Interim_Suspension\"><\/span>Interim Suspension<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Preliminary rulings may raise questions of the validity of European regulations and directives and other legislative measures under the treaty.\u00a0 Where the Court of Justice on a preliminary ruling finds an act to be invalid, then this must be recognised by other courts.<\/p>\n<p>In theory, all decisions have retrospective effect.\u00a0 Moreover, the courts recognise limitations such as where there are existing adjudications or where matters of administrative convenience would deny effect to a retroactive decision.<\/p>\n<p>In certain cases, national courts may suspend the application of national measures pending the decision of the Court of Justice.\u00a0 This is only possible in the following conditions.<\/p>\n<ul>\n<li>a preliminary ruling has been validly sought<\/li>\n<li>there must be serious doubt as to the validity<\/li>\n<li>the matter must be urgent;<\/li>\n<li>there must be a risk of serious irreparable harm, and<\/li>\n<li>damages must not be # remedy.<\/li>\n<\/ul>\n<p>The interests of the EU must have been taken into account. In such cases, the national courts may grant interim relief from the effect of the legislation concerned.<\/p>\n<!--themify_builder_content-->\n<div id=\"themify_builder_content-2922\" data-postid=\"2922\" class=\"themify_builder_content themify_builder_content-2922 themify_builder tf_clear\">\n    <\/div>\n<!--\/themify_builder_content-->\n","protected":false},"excerpt":{"rendered":"<p>Preliminary Reference The Court of Justice has jurisdiction to give preliminary rulings on points of European Union law.\u00a0 This covers matters of interpretation of the Treaties, EU legislation and measures by its institutions. Where a question is raised before any court or tribunal in a member state, it may refer the question of European Union [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[121],"tags":[],"_links":{"self":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/2922"}],"collection":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/comments?post=2922"}],"version-history":[{"count":1,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/2922\/revisions"}],"predecessor-version":[{"id":18766,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/2922\/revisions\/18766"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=2922"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=2922"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=2922"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}