Commonwealth Caribbean Law and Procedure

The Referral Procedure under Article 214 RTC in the Light of EU and International Law

Alina Kaczorowska-Ireland, Westmin James

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781000497359
• Edition: 1
• Topic: Law
• Subtopic: Courts
• Index: Law

Commonwealth Caribbean Law and Procedure: The Referral Procedure under Article 214 RTC in the Light of EU and International Law is about the referral procedure set out in Article 214 of the Revised Treaty of Chaguaramas (RTC), which Treaty established the Caribbean Community Single Market and Economy (CSME). Article 214 RTC bears clear parallels to Article 267 of the Treaty on the Functioning of the European Union (TFEU), the most important being that that both articles pursue the same objective, i.e. they seek to ensure that CSME law and EU law, respectively, are uniformly applied in all Member States. Although Article 214 RTC was inspired by, and modelled on, Article 267 TFEU, it is not its exact replica. The similarities and differences between Article 214 RTC and Article 267 TFEU are critically assessed in this book.

Also, the book:

• Examines how Article 214 RTC operates in the Caribbean context, how it interacts with other provisions of the RTC, and how it fits into the various national legal systems of the Member States of the CSME.
• Explores possible reasons why, so far, national courts of the Member States of the CSME have not made any referrals to the Caribbean Court of Justice (CCJ).
• Puts Article 214 RTC in a comparative perspective; in particular, the book compares and contrasts it with Article 267 TFEU.
• Examines some of the aspects of Article 214 RTC in the light of public international law, bearing in mind that under Article 217(1) RTC, the CCJ is required, when exercising its original jurisdiction under Article 211 RTC, to "apply such rules of international law as may be applicable." This is to ensure that the CCJ will not bring in a finding of non liquet on the ground of silence or obscurity of CSME law, which Article 217(2) RTC expressly prohibits.

This book will be of interest to academics and students studying CSME law, EU law, and comparative law, as well as judges, lawyers, and governmental and non-governmental organizations from the Caribbean region.

1 The relevance of the referral procedure to the achievement of uniformity in the interpretation and application of CSME law

Outline

• 1.1. Introduction the main objective of the referral procedure and the preliminary ruling procedure, and the means of achieving that objective under CSME law and under EU law
• 1.2. The relevance of Article 214 RTC to the achievement of uniformity in the interpretation and application of CSME law in the light of Article 222 RTC
• 1.3. The relevance of Article 214 RTC to the achievement of uniformity in the interpretation and application of CSME law in the light of Article 221 RTC
• 1.4. The relevance of Article 212 RTC to the achievement of uniformity in the interpretation and application of CSME law
• 1.5. The relevance of Article 214 RTC to the achievement of uniformity in the interpretation and application of CSME law for the Member States which have accepted the appellate jurisdiction of the Caribbean Court of Justice (CCJ) and for the Member States which have not accepted the appellate jurisdiction of the CCJ
• 1.6. Conclusion

1.1. Introduction – the main objective of the referral procedure and the preliminary ruling procedure, and the means of achieving that objective under CSME law and under EU law

The referral procedure is enshrined in Article 214 RTC, which states:

Where a national court or tribunal of a Member State is seised of an issue whose resolution involves a question concerning the interpretation or application of this Treaty, the court or tribunal concerned shall, if it considers that a decision on the question is necessary to enable it to deliver judgment, refer the question to the Court for determination before delivering judgment.

In the light of the facts that first, Article 214 RTC was, to some extent, modelled on Article 267 TFEU, which sets out the preliminary rulings procedure under the EU Treaties, and, second, that the case law of the ECJ on the interpretation of Article 267 TFEU is likely to be regarded by the CCJ as being of persuasive authority, it seems useful to reproduce the content of Article 267 TFEU. It states:

The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:

• (a) the interpretation of the Treaties;
• (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;

Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.

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.

If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay.

It can be seen from the above that Article 214 RTC and Article 267 TFEU pursue the same objective, i.e. they seek to ensure that CSME/EU law is uniformly applied in all Member States. In this respect, the ECJ in Case 166/73 Rheinmühlen¹ held that:

1 Case 166/73 Rheinmühlen-Düsseldorf v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1974] ECR 33, para. 2.

Article [267 TFEU] is essential for the preservation of the [European Union] character of the law established by the Treaty and has the object of ensuring that in all circumstances this law is the same in all States of the [European Union].

Notwithstanding the fact that under the TFEU and the RTC the preliminary ruling/referral procedure has the same objective, it is important to note:

• First, although Article 214 RTC was inspired by Article 267 TFEU, it is not an exact replica of that article. There are some similarities with Article 267 TFEU, but there are also substantial differences.
• Second, EU law and CSME law are at different stages of development. Whilst CSME law is in an early stage of development, EU law has reached a substantial level of maturity. This is reflected in the fact that in 2017, the ECJ received 533 requests for preliminary rulings and delivered 447 such rulings,² whilst the CCJ has, so far, neither been formally requested nor delivered any preliminary judgment under Article 214 RTC.
  2 See: Annual Report 2017, The Year in Review, (2017) The Court of Justice of the European Union, 80 and 91. The report is available at https://curia.europa.eu/jcms/upload/docs/application/pdf/2018-04/_ra_2017_en.pdf (accessed 13/10/18).
• Third, the importance of the preliminary ruling/referral procedure for the purpose of achieving uniformity in the interpretation and application of CSME/EU law is not the same under CSME law as it is under EU law. With regard to CSME law, it provides for mechanisms which are absent in EU law, and which have, or are very likely to have, substantive impact on the achievement of uniformity in the interpretation and application of CSME law in the Member States. These mechanisms are, in particular:
  • the possibility for private entities to rely on Article 222 RTC to obtain direct access to the CCJ, that is, to bring proceedings against a Member State for an alleged breach of CSME law directly before the CCJ;
  • the obligation imposed under Article 221 RTC on national courts to treat judgments of the CCJ as binding precedents;
  • the possibility for a Member State or the Community to request an advisory opinion from the CCJ on the interpretation and application of CSME law which is provided for in Article 212 RTC;
  • the exercise of appellate jurisdiction by the CCJ with regard to the Member States which have accepted it.

With regard to EU law, the main means of achieving uniformity in its interpretation and application is via the preliminary ruling procedure, that is, via effective cooperation between the ECJ on the one hand, and the national courts of the EU Member States, on the other (see sections 3.3 and section 3.6). That cooperation, as the ECJ stated in Case 16/65 Schwarze,³ requires that:

3 Case 16/65 Firma G. Schwarze v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1965] ECR 877, 886. See also Case C-445/06 Danske Slagterier v Bundesrepublik Deutschland [2009] ECR I-2119, para. 65.

The national court and the Court of Justice, both keeping within their respective jurisdiction, and with the aim of ensuring that [Union] law is applied in a unified manner, […] make direct and complementary contributions to the working out of a decision.

The nature of Article 267 TFEU is that it does not establish any relationship of superiority or subordination between the ECJ and national courts. In fact, the relationship is one of partnership. In order to ensure that the partnership works properly, Article 267 TFEU, unlike Article 214 RTC, makes a distinction between courts and tribunals which “may” make a request for a preliminary ruling, and those which “must” make such a request, i.e. those against whose decisions there is no remedy under national law, but this is subject to the doctrine of acte clair⁴ (see section 2.4.3).

4 Case 283/81 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health [1982] ECR 3415. See section 2.4.3.

Having said the above, it must be noted that the preliminary ruling procedure has evolved in parallel with the evolution of the EU. The relationship of cooperation continues to be at the heart of the procedure, but it cannot be denied that there has been a slow movement from cooperation to coordination, i.e. the ECJ, from being a partner, has become a master, and from having a bilateral relationship with national courts to having a multilateral relationship with them, in that preliminary rulings are, in fact, followed, by all national courts, i.e. they are treated as precedents.⁵

5 On this topic see: T. de la Mare and C. Donnelly, Preliminary Rulings and EU Legal Integration: Evolution and Stasis; and A. Stone Sweet, The European Court of Justice, in P. Craig and G. de Bùrca (eds.), The Evolution of EU Law, Oxford: Oxford University Press, 2nd edition, 2011, 376–378 and 122.

It can be argued that under the EU Treaties, there is a way of ensuring uniformity in the interpretation and application of EU law, which does not exist under CSME law, i.e. the power given to the European Commission, as the guardian of EU law, to initiate proceedings before the ECJ on the basis of Article 258 TFEU against a Member State which has allegedly breached EU law. Obviously, it is always possible for the European Commission to initiate the Article 258 TFEU procedure, but the use of this procedure is at the discretion of the Commission; occurs after an alleged breach has been committed; and may prejudice, rather than foster, harmonious relations between the EU and its Member States.

It is clear from the above that under EU law the preliminary ruling procedure is the “jewel in the crown” when it comes to the development of EU law, and national laws of the Member States, and that through this procedure the ECJ eliminates, as far as possible, any divergences in the interpretation and application of EU law through Member States, so ensuring that the EU functions properly, and its law is applied coherently, consistently, and uniformly across a diverse range of legal cultures. By contrast, as previously stated, the referral procedure contained in Article 214 RTC constitutes one of the many ways in which uniformity of CSME law is to be ensured.

This chapter focuses on the relevance of the referral procedure to the achievement of uniformity in the interpretation and application of CSME law in the light of Articles 222, 221, and 212 RTC. Further, it discusses the relevance of the referral procedure for both the Member States which have accepted the appellate jurisdiction of the CCJ, and for those which have not.

1.2. The relevance of Article 214 RTC to the achievement of uniformity in the interpretation and application of CSME law in the light of Article 222 RTC

This section examines the importance and relevance of the referral procedure for the achievement of uniformity in the interpretation and application of CSME law in the light of Article 222 RTC, which allows private entities to seek special leave of the CCJ with a view to bringing claims before the CCJ against a Member State or the Community.

1.2.1. Article 222 RTC – locus standi of private entities before the CCJ

The best way to ensure that CSME law is uniformly interpreted and applied is to give private entities the opportunity to enforce the rights conferred upon them by that law directly before the CCJ. In this respect, Article 222 RTC, as interpreted by the CCJ, is revolutionary in that it ensures that private entities have direct access to the CCJ not only in respect of claims against the Community, but also against Member States. As a result, Article 222 RTC undermines the importance of the referral procedure in terms of its contribution to the achievement of uniformity in the interpretation and application of CSME law. Indeed, when a private entity has a claim against a Member State based on CSME law, such entity will be more likely to start proceedings directly before the CCJ rather than before a national court. This is because of the considerations outlined below in sections 1.2.1.1; 1.2.1.2, and 1.2.1.3.

1.2.1.1. Dualism and its implications for the achievement of uniformity in the interpretation and application of CSME law

The Member States of the Community have ensured that the principles of supremacy, direct effect, and direct applicability,⁶ as understood under EU law, are not part of CSME law. Article 1 of The Protocol attached to the RTC (see section 6.4) prevents the CCJ from establishing the principle of supremacy of CSME law, in any event from giving any judgment similar to that of the ECJ in Case 11/70 Internationale Handelsgesellschaft,⁷ in which the ECJ held that EU law prevails over national constitutional law if the two conflict. Article 240(1) RTC precludes the existence of the principles of direct effect and direct applicability in CSME law. Article 240(1) RTC states: “Decisions of competent Organs taken under this Treaty shall be subject to the relevant constitutional procedures of the Member States before creating legally binding rights and obligations for nationals of such States.” This article confirms the attachment of the Member States to dualism. Indeed 11 out of 12 Member States are known as “The Commonwealth Caribbean countries.” They are English-speaking island-States and two mainland States, Belize and Guyana, situated in the Caribbean region which during the colonial era constituted the Caribbean part of the...