Preliminary rulings and the co-operation between national and European Courts.

Abstract: The topic of this thesis is the preliminary ruling institution found in article 234 EC and especially the obligation of national courts of last instance to refer questions to the Court of Justice in paragraph three of this article. 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. More specifically the study seeks to evaluate recent developments in the case-law from both the ECJ and the Swedish courts of last instance from the perspective of this co-operative approach. 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. This institute has been very important for the evolution of Community law. However current problems, notably the delays caused by the increased case-load of the ECJ, have led to the questioning of the institution's future. The questioning of the present system has mainly focused on the CILFIT ruling in which the ECJ defined the limits of the exceptions to the obligation to refer questions of community law in article 234(3). The CILFIT judgement gives a strict interpretation to the most important of the four recognised exceptions to the obligation, the acte clair doctrine. Despite this criticism the ECJ has recently upheld the CILFIT ruling and the obligation for national courts of last instance must therefore be evaluated according to this ruling. Importantly, there has been a development of the consequences of a failure to refer, which has taken two different forms. Firstly, I argue that the Commission has started to go further in its infringement proceedings based on actions by the national judiciaries, including a proceeding against Sweden. The Court has ruled in favour of the Commission in one of these cases, but has been cautious in its approach and showed a great respect for the independence of the judiciary, arguably to sustain the co-operative relationship between itself and the national courts. Secondly, the Court has ruled in the Köbler-case that a non-referral can hold the Member State liable according to the principle of state liability. However, the Court has also in this area taken a cautious approach by applying stricter criteria for when state liability can be invoked in cases where the claim is based on actions by the judiciary. Therefore, my conclusion is that even if this recent development strengthens the position of the ECJ vis-à-vis national courts, the principle of co-operation is still guiding the Court. This increased possibility of control could in my opinion possibly be a first step towards giving national courts more responsibility in applying EC law. By looking at statistics which show the number of references coming from Sweden and the attitude taken by Swedish courts of last instance in early cases, one can conclude that there is an apparent reluctance and in some cases even a refusal to send questions to the ECJ. When analysing cases from 2004, all of which have been considered by Bernitz to be possible infringements of the obligation to refer, it is apparent that the reluctance is still present. However, my conclusion is that in only one of these cases studied is it clear that the Swedish court was in breach of Community law by not referring a question. Given the strict criteria for state liability, it is, however, uncertain if even this, in my opinion rather obvious disregard of Community law can lead to a claim of liability. In the Commission's infringement proceeding against Sweden, the Commission only refers to one case as constituting proof of a breach of the obligation to refer by Swedish courts. Interestingly, my conclusion is that this case in fact hardly can be seen as constituting a breach of the obligation. In its traditional form, the co-operative relationship only includes the courts with no role for individuals. However, with the developments in Köbler and the reluctance of national courts to refer questions, the importance of the individual party as an active participant has increased. This seen in relation to development in other areas of EC law may indicate a changing character of the Community judicial system.