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The preliminary ruling procedure as part of a 'complete system of remedies': Does the obligation to seek a preliminary ruling ensure effective judicial protection of individuals?

Briem, Hildur (2005)
Department of Law
Abstract
Access to court is essential for the protection of all rights of individuals. The same holds true for the rights individuals derive from Community law. The Court of Justice of the European Communities (ECJ) is the only court competent to review the legality of acts of the Community institutions. In addition, the ECJ has the last word on the interpretation of Community law. Yet, direct access for individuals to the ECJ, pursuant to Article 230(4) EC, is strictly limited. Thus, the indirect access to the Court through national courts by means of the preliminary ruling procedure has become the most common procedural route for individuals. The Court has repeatedly indicated this procedure as an alternative to Article 230(4) EC and has... (More)
Access to court is essential for the protection of all rights of individuals. The same holds true for the rights individuals derive from Community law. The Court of Justice of the European Communities (ECJ) is the only court competent to review the legality of acts of the Community institutions. In addition, the ECJ has the last word on the interpretation of Community law. Yet, direct access for individuals to the ECJ, pursuant to Article 230(4) EC, is strictly limited. Thus, the indirect access to the Court through national courts by means of the preliminary ruling procedure has become the most common procedural route for individuals. The Court has repeatedly indicated this procedure as an alternative to Article 230(4) EC and has emphasised the completeness of the system of remedies of the EC Treaty. Yet, the Court has indirectly admitted that the system of remedies is not as complete as it should be and has appealed to the responsibility of the Member States to amend the system. The main problem with the preliminary ruling procedure is that it is not a matter of right for individuals. It is up to the national court to decide whether or not to seek a preliminary ruling and how to phrase the questions submitted to the ECJ. National courts ''against whose decisisions there is no judicial remedy'' are obligated to refer questions of Community law to the ECJ, but the Court has ruled that the obligation is not absolute. Apparently it happens that these limitations, and the conditions for their application, are misconstrued or deliberately abused by national courts. This can lead to a denial of justice for individuals, as they are cut off from access to the only court that is fully competent to grant their claims. This is particularly apparent when it comes to claims based on the invalidity of Community acts. Furthermore, the Court has taken a narrow view on the question of which courts are under an obligation pursuant to Article 234(3) EC and ruled that only the highest courts in the national hierarchy are under the obligation, even if admission to that court is subject to the grant of leave to appeal. The purpose of this thesis is to examine whether individuals receive effective judicial protection by means of the preliminary ruling procedure, particularly in light of the obligation to refer as interpreted by the Court. To measure the effectiveness of the procedure in this respect, I use two parameters: the case law of the ECJ on access to national courts and the case law of the European Court of Human Rights (ECtHR). My conclusion is that there are strong arguments for holding that the indirect access of individuals to justice by means of the preliminary ruling procedure neither fulfils the conditions which the ECJ itself has imposed on national courts, nor Articles 6 and 13 of the European Convention for the protection of Human Rights and Fundamental Freedoms (ECHR). (Less)
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author
Briem, Hildur
supervisor
organization
year
type
H1 - Master's Degree (One Year)
subject
keywords
European Affairs
language
English
id
1554950
date added to LUP
2010-03-08 15:22:46
date last changed
2010-03-08 15:22:46
@misc{1554950,
  abstract     = {Access to court is essential for the protection of all rights of individuals. The same holds true for the rights individuals derive from Community law. The Court of Justice of the European Communities (ECJ) is the only court competent to review the legality of acts of the Community institutions. In addition, the ECJ has the last word on the interpretation of Community law. Yet, direct access for individuals to the ECJ, pursuant to Article 230(4) EC, is strictly limited. Thus, the indirect access to the Court through national courts by means of the preliminary ruling procedure has become the most common procedural route for individuals. The Court has repeatedly indicated this procedure as an alternative to Article 230(4) EC and has emphasised the completeness of the system of remedies of the EC Treaty. Yet, the Court has indirectly admitted that the system of remedies is not as complete as it should be and has appealed to the responsibility of the Member States to amend the system. The main problem with the preliminary ruling procedure is that it is not a matter of right for individuals. It is up to the national court to decide whether or not to seek a preliminary ruling and how to phrase the questions submitted to the ECJ. National courts ''against whose decisisions there is no judicial remedy'' are obligated to refer questions of Community law to the ECJ, but the Court has ruled that the obligation is not absolute. Apparently it happens that these limitations, and the conditions for their application, are misconstrued or deliberately abused by national courts. This can lead to a denial of justice for individuals, as they are cut off from access to the only court that is fully competent to grant their claims. This is particularly apparent when it comes to claims based on the invalidity of Community acts. Furthermore, the Court has taken a narrow view on the question of which courts are under an obligation pursuant to Article 234(3) EC and ruled that only the highest courts in the national hierarchy are under the obligation, even if admission to that court is subject to the grant of leave to appeal. The purpose of this thesis is to examine whether individuals receive effective judicial protection by means of the preliminary ruling procedure, particularly in light of the obligation to refer as interpreted by the Court. To measure the effectiveness of the procedure in this respect, I use two parameters: the case law of the ECJ on access to national courts and the case law of the European Court of Human Rights (ECtHR). My conclusion is that there are strong arguments for holding that the indirect access of individuals to justice by means of the preliminary ruling procedure neither fulfils the conditions which the ECJ itself has imposed on national courts, nor Articles 6 and 13 of the European Convention for the protection of Human Rights and Fundamental Freedoms (ECHR).},
  author       = {Briem, Hildur},
  keyword      = {European Affairs},
  language     = {eng},
  note         = {Student Paper},
  title        = {The preliminary ruling procedure as part of a 'complete system of remedies': Does the obligation to seek a preliminary ruling ensure effective judicial protection of individuals?},
  year         = {2005},
}