Details

Autor(en) / Beteiligte

• Vegele, Ignas

Titel

The Right and the Duty to Refer to the Court of Justice of the European Communities

Ist Teil von

• Jurisprudencija, 2007-07, Vol.97 (7)

Ort / Verlag

Vilnius: Mykolas Romeris University

Erscheinungsjahr

2007

Link zum Volltext

Quelle

EZB Electronic Journals Library

Beschreibungen/Notizen

• The article analyses the preliminary ruling procedure and its impact to the development of EC law and the relationship between the ECJ and national courts. The right and the duty of the national courts to refer the questions to the ECJ is the primary objective of the article. It is widely recognised that the national courts enjoy a discretion in deciding whether or not to refer to the ECJ, however, the article demonstrates that this discretion is comparably limited. It is suggested that the discretion to refer the ECJ shall be divided in two forms: discretion to ascertain whether a decision on a question of community law is necessary to enable them to give judgment and the discretion to factually address the ECJ. The degree of discretion enjoyed is important for the purposes of establishing state liability. The widest discretion is enjoyed be national courts in deciding that a decision on a question of EC law is necessary in a particular case. If the national court decides that it needs the interpretation of the community law in a particular case, the court of the last instance must refer the case to the ECJ (except acte clair or acte éclairé situation provided in famous Cilfit decision). Therefore, it is concluded that the courts of last resort does not enjoy any discretion of this form, however, that form of discretion is still enjoyed by other national courts. The article pays attention that even where the court enjoys the discretion, the discretion itself is not unlimited and is restrained by the EC law either.