Judicial Review and the Preliminary Ruling Procedure

Judicial Review and the Preliminary Ruling Procedure

Access to justice is quite significant for every individual, and it goes beyond the right to an effective remedy throughout the entire process. It is, therefore, significant to ensure that everyone can access effective mechanisms that allow them to get justice. There are two crucial PRP (Art. 267 TFEU) and JR (Art. 263 TFEU) that help in ascertaining whether the system of judicial protection for third parties in the EU is valid or not. Some of the issues of accessibility in PRP are those in Art. 267 (TFEU) that promote a cooperative relationship between CJEU and national courts, the reference-based procedure which does not support an appeal system. This piece of writing critically evaluates whether the mechanisms for accessing justice under EU law are effective for third parties and provide recommendations for reforms or opportunities missed.

Two vital articles are useful in this piece of writing. They are PRP (Art. 267 TFEU) and JR (Art. 263 TFEU). As per Article 267 (TFEU), the Court of Justice of the European shall have the power to give preliminary rulings concerning the interpretation of the treaties and the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union. Courts that submit the referral are required to be established by law and be permanent, have compulsory jurisdiction, apply the rules of law, and be independent. The ruling intended to ensure that EU law has similar meaning and effect in all the member states.  EU has a restrictive measure regime in place with the government scheme that surrounds the administration derived from a body of case law. Those that prescribe to the EU law have the opportunity to challenge EU sanctions before the General Court, but the problem is that taking actions to the CJEU is a narrow tight. Furthermore, sanctions can be perceived to be peculiar because it requires a CFSP Decision and because they can be implemented throughout the EU.

There are restrictive measures against legal persons under the EU law. As per the para. 4 of Art. 263, it is vital to ascertain the legality of decisions that allow for restrictive measures against natural persons, particularly regarding those that do not entail implementing measures. What is even more impressive is the fact that under the EU law, the judges are required to observe the preservation of legal unity in which legal redress for an individual is safeguarded. Moreover, there are aspects of lowering the quality of the rulings because of the many references that have increased in the recent past. The Court may not have sufficient time to analyze all the references, thus making the rulings not to fit being legal precedent as may be expected, thus denying access to justice for individuals. Besides, there is a lack of legal certainty in the CJEU, which gives it a vague outline, thus bordering the absurd. What EU law is measured against is nothing yet the spirit of the preliminary ruling procedure seems to have been tampered. The challenge has been triggered by the alternating distribution of coordinates hence the need for a more predictability and specificity law. Issues raised by the application of the preliminary ruling procedure is enough assurance of the stagnation because every issue brought may not be applied in the future. Furthermore, courts take a longer time to give rulings because of the need to reference the CJEU, which, in turn, affects the justice system. Individuals are therefore denied justice because of the longer time taken to refer to the CJEU. The threshold of having a dispute settlement power also denies individuals justice. This is because an institution’s opinion is not taken seriously, as is the case of the ability to resolve the dispute.

Access to Court can be a massive challenge to individuals because of the problems related to the institution of proceedings before the dispute resolution bodies. Some of the issues that may hinder access to courts include the organization of the national judicial system, legal and procedural obstacles, and practical obstacles. The organization of the judicial system may hinder access to justice because individuals may have problems accessing courts. In certain instances, there are judges employed on temporary conditions that affect their performance. The judges may not deliver justice as expected because of their work environment. Improper delivery of judgment can eventually affect individuals.

Additionally, some individuals may not be able to appeal the first judgments hence hindering justice. The justice system is a process that is expected to begin and end successfully. The existence of a hiccup at any stage is a clear indication that there is justice denied at that stage. There may also be legal and procedural challenges, as well as a lack of availability of courts in some jurisdictions. The EU law does not provide for the need to have courts in every jurisdiction. It, therefore, means that some can miss courts near them, thus delaying the justice process.

The CJEU is perceived to be critical in the national judicial system. There is the difficulty of ensuring that the national application is consistent with the EU laws. The number of times the country has used references from the preliminary ruling also determines the future of a case.  The more the reference, the better, but if the references are fewer, EU law is rarely used in the justice system, thus limiting accessibility. Jurisdictions that do not have many references in their system may not apply the EU laws as expected in their system. Only a few cases may be referred depending on the number of references and the relevance of the case in hand with the EU law. Resorting to the mechanism of preliminary reference depends on the level of knowledge and understanding of the EU laws by the judge. A judge who does not have a broader and intensive knowledge regarding EU law may be inexperienced enough to apply the law. It, therefore, means that lack of knowledge thereof is a hindrance to individual justice. A country’s practice and application of the EU laws is therefore necessary for ensuring that the third parties are not denied justice.

There exist restrictive measures in the interpretation of the law, as highlighted in the EU law. It is through the restrictive approach that Art. 267 TFEU is perceived to have a marginal role. Specific cases that were not addressed in Inuit have been provided for in Telefonica, such as the interpretation of the legislative measures as well as acts that require implementing measures by the EU institutions. Individuals are not lucky enough to be judged against the implementing measures of their local states. Interpretation of the individual concerns is therefore not taken seriously under the EU laws, and that is evident in Article 267 TFEU. The restrictive rules on locus standi for private individuals and the confusion of what individually concerned means have raised eyebrows on the ability of EU laws to deliver justice to the third party. There was a sense of unfairness attributed to the laws after only a few private litigations were allowed meaning that most of them were restricted. The EU laws have adequately resolved the issue of the legal person.

Interestingly, even the article 263 that was expected to address the concern did very little in resolving the issue of both restrictions that prevent most challengers or principle of individual concern. It, therefore, means that those who intend to challenge any decision to lack a degree of legal certainty that may give them the confidence to go ahead. They may not proceed because they do not have the legal backing as could be expected.

Showing of individual concern has been denied by defining the beneficiaries instead of letting it operate broadly. The fourth paragraph of Article 263 requires a proper interpretation regarding the regulatory act and its entirety. Judge General Jacobs, in his decision, said that it was essential to test for individual concern by decoupling it from the Plaumann test in UPA, and the Judgment of the Court of First Instance in Jégo-Quéré in which UPA’s fundamental right to effective judicial protection had been violated. UPA wanted that the standing should be granted even without establishing individual concern while disagreed saying that it would involve the Court in a constant assessment while the commission wanted the case to be left with the member state to benefit from the preliminary ruling in due course. From the case, it is evident that there exist different and sometimes confusing views regarding EU laws. They can never be conclusively said to promote justice to third parties because individuals cannot use directly institute proceedings against generally applicable legal acts. Instead, they can only seek recourse with the national courts, and that hinders access to justice.

The right of persons to institute legal proceedings and the issue of direct concern has been tried in several cases in EU member states. However, the decisions have always experienced restrictive limitations that have hindered individuals from accessing justice in another case of Inuit Tapiriit Kanatami and others v. European Parliament and Council of the European Union saw the claimant challenging regulation of Parliament and Council on seal products, but the general Court rejected the application since it challenged a regulation made as a legislative act under Art. 289. As per the ruling, the case was not a regulatory act under Art. 263(4) hence the need for the claimant to show both individual and direct concern. The General Court upheld that a legislative act is never defined by the functional basis as was presented in the case and from the decision, it is apparent that the right of persons to institute proceedings was on trial.

Recommendations

Justice must not be denied at all costs. The EU laws ought to be amended to ensure that individuals can get justice. Third parties ought to be allowed to institute legal proceedings in case their rights are breached. With that, they will feel that their plights are addressed and that they are given the opportunity to raise their concerns. The restrictive measures that are currently evident in the CJEU ought to be eliminated to allow justice to prevail. Proceedings in the national courts ought to comply with the EU laws to promote the implementation and to reference. The emergence of several cases regarding EU laws ought to be harmonized, and judges should have ample time reviewing the references and choosing the best that fit the cases before them. Having a leaner reference can help in making concrete evidence, thus providing justice to individuals.

Conclusion

Despite the positive sides of the EU law, certain setbacks must be looked into, particularly on the third party issue. Individuals are denied access to justice. Failure to allow the third party to institute a proceeding against generally applicable legal acts is denying such a person. It is, therefore, essential to adopt useful recommendations that can ensure that everyone gets justice, whether they are individuals or not. EU may be forced to reconsider its laws to ensure that no single individual is denied justice as it stands under the preliminary procedure. The concept of access to justice is a process that has to be completed right from the beginning to the end hence the need to ensure that proper mechanisms are put in place to promote justice. The mechanism of judicial review and the preliminary procedure hinders access to justice within the EU legal order because they are not efficient at providing effective remedies to individuals.

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