The preliminary reference procedure in EU, Maltese and UK law

Abstract

The objective of this thesis is to spell out the procedure involved in making a preliminary reference to the European Court of Justice from a domestic court or tribunal. This thesis also tries to anticipate the workings of article 234 of the EC Treaty dealing with preliminary references, within the complexity of the Maltese courts, judging on what happened mainly in the United Kingdom. In so doing, the Maltese legal players, be they judges, magistrates, lawyers, adjudicators or otherwise, may familiarise themselves with this system which became applicable on 1 May 2004 when Malta became a member of the European Union. This thesis, through chapter one, immediately gives a thorough view on what article 234 of the EC Treaty (formally article 177) dealing with preliminary reference entails. It endeavours to explain that the aim of a preliminary reference from a domestic court or tribunal to the European Court of Justice is a much needed form of co-operation between the two courts so that Community law may be applied as uniformly as possible throughout the Community. Amongst other things, this chapter, through various case-law, evaluates what can and what cannot be referred to the Court of Justice; what is a court or tribunal according to the ECJ; and the question of the discretion and obligation to refer to the European Court. Chapter two of the thesis, departs from the substantive law which was analysed in chapter one and concentrates on how the United Kingdom deals with article 234 of the EC Treaty including an analysis of the rules of procedure which the UK parliament enacted so as to be able to make a reference from a UK court or tribunal to the European Court. It then goes on to explain the various guidelines issued by the ECJ and the statute and rules of procedure of the Court with regards to preliminary references. Chapter three is the chapter which I consider as the focal point of this thesis. It concentrates on how article 234 is going to be applied now that Malta became a member of the European Union. This is a wholly hypothetical chapter as one cannot really say what actually is going to happen, but at least, this may be speculated. This chapter involves an analysis of the European Union Act which was passed by the Maltese parliament in 2003 and which most importantly states that as from the 1 May, EU law is supreme and the direct effect of EU law will be applied in Malta. Furthermore, with the help of Dr. Simon Busuttil, whom I have interviewed for the purpose of this chapter, I try to answer various questions dealing with the way article 234 is going to be applied domestically. Finally, in the fourth chapter, I analyse the reforms brought through the Nice Treaty to the preliminary reference procedure, and consider other reforms which are necessary so as to make the system work more smoothly in an enlarged European Union. I also concentrate on the Draft Constitution which also proposes some minor changes to article 234 of the EC Treaty.