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Complete 8 page APA formatted essay: LAW OF EUROPEAN UNION. Discuss, with references to relevant EC Treaty provisions and decided cases, whether or not a reference should be made in this case, and.Art
Complete 8 page APA formatted essay: LAW OF EUROPEAN UNION. Discuss, with references to relevant EC Treaty provisions and decided cases, whether or not a reference should be made in this case, and.
Article 234 of the EC Treaty provides a mechanism by which citiziens and bodies within the European Community may obtain clarification of Community law. In a typical case a question is referred to the European Court of Justice and the general puropose of Article 234 is to ensure that all laws within the European Community equally reflect Community law.
In general Article 234 provides that the European Court of Justice will have the authority to “give preliminary rulings”1 with respect to:
Article 234 goes on to provide that when “such a question is raised before any court of tribunal of a Member State,”3that court or tribunal may if it deems it necessary for the purpose of ruling in the matter before it, “request” a ruling from the ECJ.4 Moreover:
“Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice.5
The result of Article 234 is the development and application of Community law. Principlay Article 234, the ECJ by deciding cases by way of references it rules on points of law and does not sit as an appellate court. In Foglia v Novella [1980) ECR 745 the ECJ ruled that it would only determine references arising out of genuine disputes and refused to accept a reference where a clause was inserted into a contract solely for the purpose of creating a legal challenge.6
In the case of Melicke v ADV/ORGA AG [1992] ECR I-4871 the ECJ refused a refence because it lacked specificity in the sense that the court was required to rule on a hypotheical bases. The ECJ ruled that it could not decide on the disputer because it did not have:
The first issue for Jane is whether or not the Social Service Adjudicator presiding over Jane’s complaint is a proper body under
