European Union Law ( EU Law) - grant of authority to the General Court
In the future, the General Court will get certain preliminary judgments, albeit in "particular areas" and with the potential for ECJ review. Article 256(3) outlines the process: "Article 256(3) The General Court shall have competence to hear and decide questions submitted for a preliminary ruling pursuant to Article 267, in the specified areas prescribed by the Statute. The General Court may refer a case to the Court of Justice for a judgement if it believes that doing so will have an impact on the unity or consistency of Union law. In extraordinary circumstances, when there is a severe risk to the unity or consistency of Union law, decisions made by the General Court on questions referred for a preliminary determination may be subject to review by the Court of Justice, within the terms and restrictions outlined by the Statute. Although it has been in existence since 1989, the General Court has never really dealt with preliminary decisions. The General Court did not have jurisdiction over this matter when it was established. When Article 256(3) was added to what was then the EC Treaty in 2003, that situation altered. The main reason the approach hasn't been implemented yet is because no decision has been made regarding what the "particular areas" should be. There have been many recommendations made, but none have been implemented as of yet (see particularly P Dyrberg, "What Should the Court of Justice be Doing?" (2001) 26 EL Rev 291). There will probably be kinks in the new method until it is fully evolved, assuming the General Court is permitted to begin hearing preliminary judgements at some point. For instance: When a "determination of principle" is involved, the General Court "may" send cases to the ECJ. But what does that mean? Even though the General Court's decisions are only subject to "extraordinary" ECJ review, this weakens the legitimacy of all of those decisions. Can a General Court decision be applied by any national court while a potential review is still pending? Should the European Court of Justice be given a deadline to decide whether to use its review power? There has been a varied, but generally encouraging, response from academia to the General Court receiving preliminary ruling jurisdiction. According to Tridimas, the process strikes a "acceptable compromise between competing demands" between the need for a more streamlined process and the requirement for a consistent application of EU law. In his article "Knocking on Heaven's Door: Fragmentation, Efficiency and Defiance in the Preliminary Reference Procedure" from 2003, 450 CML Rev 9, T. Tridimas argued that the idea of the ECJ and General Court sharing authority over preliminary judgements was "preferable over other changes." The new method was deemed "extremely essential" by another commentator, who also said that it would be best to use this option as soon as possible (B Vesterdorf, "The Community Court System Ten Years from Now and Beyond: Challenges and Possibilities," (2003) 28 EL Rev 303). Heffernan, on the other hand, expressed less optimism, asserting that "there is every reason to expect that [the General Court's] contribution will be limited" (L. Heffernan, "The Community Courts Post-Nice: A European Certiorari Revisited," (2003) 52 ICLQ 907).
0 Comments
Leave a Reply. |
Kembara's Legal InfosInfos about legal issues and legal concepts that are available online . Archives
February 2023
Categories
All
|