Essay Topic 6

8/11/2019 Essay Topic 6

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University of London

Common Law Reasoning and Institutions

Essay Title: 6 Attaining a representative judiiary is diffiult !ut neessary

to ensure pu!li onfidene in t"e rule of law and to avoid deision partial

to one partiular segment of soiety#$

%tudent no# &''((()&*

E+am Candidate no# ,-,-'


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Introdution

The principal of jurisdiction in England and Wales are the practical authority granted to a

formally constituted legal body or to a political leader to deal with and make pronouncementson legal matters and, by implication, to administer justice within a defined area of

responsibility. The courts exercise three type of jurisdiction are first instance, on appeal and

supervisory which is the proceeding are by the way of judicial review. Unfortunately, there is

no jurisdiction is prefect and balance in this world especially in national court in Engalnd and

Wales. Thus, the European ourt of !ustice "E!# to ensure that the law is observed in the

interpretation and application of the Treaties of the European Union and of the provisions laid

down by the competent ommunity institutions. To enable it to carry out that task, the ourt

has broad jurisdiction to hear various types of action. The ourt has competence, among

other things, to rule on applications for annulment or actions for failure to act brought by a

$ember %tate or an institution, actions against $ember %tates for failure to fulfill

obligations, references for a preliminary ruling and appeals against decisions of the ourt of

&irst 'nstance "renamed as the (eneral ourt#

E! is the highest court of the European Union in matters of Union law, but not national law.

't is not possible to appeal the decisions of national courts to the E!, but rather national

courts refer )uestions of EU law to the E!. *owever, it is ultimately for the national court to

apply the resulting interpretation to the facts of any given case. +lthough, only courts of final

appeal are bound to refer a )uestion of EU law when one is addressed. The treaties give the

E! the power to consistent application of EU law across the EU as a whole.

Therefore, it has placed great importance upon the uniformity of application of ommunity

law in the $ember %tates, and the desire to see that the ommunity was not weakened by

diversity in interpretation or application.

-The E! has, on a number of occasions, taken the view that the supremacy of ommunity

law is implicit in the obligation imposed upon $ember %tates by +rticle .

Member States shall take all appropriate measures, whether general or particular, to

/ibliography 0o. 1, pg 21-/ibliography 0o. , pg 13

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ensure fulfilment of the obligations arising out of this Treaty or resulting from action

taken by the institutions of the Community. They shall facilitate the achievement of the

Community's tasks.

They shall abstain from any measure which could eopardise the attainment of the

obectives of this Treaty.!

3Van Gend en loos C 26/62

The 7utch courts seeked advice from E! whether +rt -8 of the Treaty had direct effect. The

E! took this opportunity to declare that 9the ommunity constitutes a new legal order in

international law, for whose benefits the %tates have limited their sovereign rights albeit

within limited fields.:

4Costa v ENEL (Case 6/64) [1964] ECR 585

osta argued that the nationali;ation of the 'talian electricity industry was contrary to

ommunity law. E0E< and the 'talian government argued that this was irrelevant, since the

'talian courts were obliged to apply the later 'talian law under nationali;ation was legal. The

E! ruled that ommunity law was part of the legal systems of $ember %tates and had to be

applied by national courts. There had been a transfer of sovereignty to the ommunity and it

was integral to this new legal system that ommunity law took precedence over later,

inconsistent national law.

5A!n!st"a#!one delle $!nan#e dello %tato v %!ent&al %'A (%!ent&al ) (Case

16/**) [19*8] ECR 629

'n Simmenthal Sp" v #talian Minister of $inance %Simmenthal #& "ase 185=6# >3=6? E@

A= that a fee charged on %immenthal:s imports of beef into 'taly was contrary toommunity law on the free movement of goods. The 'talian court ordered the gee to be

repaid but the +mministra;ione delle &inan;e appealed. Under 'talian lawm the

constitutionality of the law imposing the gee had to be referred to the onstitutional ourt.

The 'talian court referred the issue to the E!. The E! stated expressly that a national court

1/ibliography 0o. 22

@eference 0o. 1, pg 2@eference 0o. 1, pg 28

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nte"nat!onale andels,esells.&a0t (Case 11/*)

'n this case, the ourt was concerned with a conflict between and E regulation and

provisions of the (erman constitution protecting fundamental rights. Under (erman law, the

constitution was superior to a statute.

The E! took a strong view and insists that the legality of a ommunity act cannot be

nullified by national law. The (erman onstitutional ourt was concerned about the lack of

protection for fundamental rights within the ommunity. Until this change, the fundamental

rights provision of the (erman constitution would take priority. This would not mean that

they would rule on the validity of a ommunity act, but rather they would conclude that such

a measure could not be applied in (ermany.

=The E! has repeatedly used +rt to emphasi;e the fundamental obligation upon $ember

%tates to implement ommunity legislation, so that it receives uniform application

throughout the ommunity.

Conlusion:

E! has supreme authority in relation to decisions that concern European law. it does not

have authority over matters that solely concern domestic law. $ain purpose in relation to the

doctrine of precedent is to ensure that European law is applied consistently throughout

member states of the European Union. ne of the main ways this is achieved is through the

preliminary ruling procedure under article -12.

The court also acts as arbiter between the EUFs institutions and can annul the latterFs legal

rights if it acts outside its powers.

The national courts, in as much as they retain jurisdiction to review the administrative

implementation of EU law, for which the authorities of the $ember %tates are essentially

responsibleC many provisions of the Treaties and of secondary legislation G regulations,

directives and decisions G directly confer individual rights on nationals of $ember %tates,

which national courts must uphold.

The ourts of $ember %tates have adapted to the principle of supremacy of EU law which is

due in part to the persuasive judgments of the E! following the mechanism in +rticle -12@eference 0o. 1, pg 28

=@eference 0o. 1, pg 28

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@eference 0o. 1, pg 22, 26which permits a national court to seek clarification from the E! as to

the meaning or validity of ommunity law.

A+lthough the ommunity law is always supreme for most of the cases, $ember %tates may

also declare the jurisprudence of the E! as incompatible, such asD v Secretary of State for

*mployment e( p *C+"332#, *< of United Bingdom,#nternationalecase in (ermany and

$ragdcase in 'taly.

7espite the jurisdictions are trying to maintain perfect and any of the parties to the

proceedings before the court of the member state may ask the court to seek a ruling on a

)uestion of EU law, no parties ever has any right to insist that a re)uest for a ruling shall be

made. 7efinitely E! will be terrific but the problem is that the national governor who is in

power may be never let it happen because they will not be able to rule. 4olitics in is an ugly

thing G the person who wanted to have the authorities for the country gets deviated from the

right path once he is in power. 't is as evil as money.

"8-= words#

Referenes:

. 7eards E. H *argreaves %., I

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Essay Topic 6