Preliminaraus nutarimo procedūros taikymo praktika ir problemos

Abstract

The topic of this thesis is the preliminary ruling institution found in article 234 EC and contemporary its problems. This institution is based on a co-operation between the ECJ and national courts giving each of the two types of courts their own tasks and responsibilities. The co-operative approach entails a mutual respect for the other type of court’s function and a focus on dialogue as a driving force in the development of Community law through preliminary rulings. The second chapter of the thesis focuses on the review of the activity of Community courts taking part in the mechanism of the preliminary ruling. This activity is meant to ensure that the same Community law act is equally comprehended and applied and in the case of the act violation it is defended by referring of the national court to the European Court of Justice. The right and obligation of the national court to refer to the ECJ is possible only in two cases because of the interpretation and validity of the Community legal act. The European Court of Justice has determined that to it should refer not only the last instance national courts according to the EC Treaty article 234 (3), but also the lower instance national courts when there arises the question of the Community law validity. The European Court of Justice has also determined conditions according to which the last instance national courts are discharged from the obligation to refer according to the EC treaty Article 234 (3). The conclusion made at the end of the chapter is that the preliminary rulings offered by the European Court of Justice have the power of the legal precedent. Although the institute of the preliminary ruling was very important for the development of the Community law, nowadays it has serious problems, especially the delay of the preliminary reference caused by the increasing workload of the European Court of Justice. Furthermore due to the fact that other ways for individuals to access the European Court of Justice are very restricted, the preliminary ruling is the main remedy for individuals to defend their rights. The main problem is that the preliminary ruling is not the matter of a right for individuals. The decision to refer to the ECJ is made ex officio by the national court. Other problematic questions are related to the fact whether the European Court of Justice reasonably determined strict conditions of the exception of reference obligation in the CILFIT case. National courts start abusing those conditions as they do not have any opportunities to fulfill them. Moreover, the ECJ in the Lyckeskog case narrowly interpreted the concept of the court against whose decisions there is no judicial remedy under national law. These and other problems are closely connected with individuals rights which suffer from the fact that the obligation to refer to the European Court of Justice is being narrowed as the right to access the court is essential for the protection of all rights of individuals. The end of the chapter includes the analysis of the non-referral consequences of the national court and what kind of judicial remedies there exist in the case of non-referral. The conclusion made in the thesis is that the preliminary ruling is the essential provision of the EC Treaty, nevertheless from the point of view of the protection of individuals rights there are strong arguments 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 ECHR.