Discussing whether the Spanish Medical Council should refer Maria's case for preliminary ruling under article 234.

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I will be discussing whether the Spanish Medical Council should refer Maria's case for preliminary ruling under article 234. The principle of Article 234 EC Treaty is to ensure that EC Law is applied and interpreted uniformly throughout the member states. Article 234 provides that a court or a tribunal must refer a matter of "interpretation of the statute of bodies established by an act of the Council, where those statutes so provide". The preliminary ruling proceedings may serve as a means to protect the rights, which citizens derive from Community law. This function is a very important one since rulings made by the European Court of Justice are then binding on courts in all Member States. This ensures that the law is indeed uniform throughout the European Union.

The first question that arose in my mind when reading the question was whether the SMC's interpretation of the law was correct; I believe that when the tribunal made their judgement they were taking Spanish law as more superior to EC law.

Yet it I consider it is absolute that EC is more superior. Subsequently one would assume that the interpretation is inaccurate, breach of EC law should prevail and hence there is an obligation to refer. If the SMC can make a decision like that without taking into consideration EC law then the uniformity the ECJ is aiming for is not there. Because the whole purpose of the ECJ and Article 234 is to keep uniformity in the Community law. As long as there is no correct interpretation, it is a MUST to refer therefore the SMC is wrong in ruling that it is not necessary. De Coster v College [Case C - 17 / 00]

The Court of Justice shall ensure that in interpreting and applying the Treaty the law is observed. For this purpose the Court of Justice, inter alia, has jurisdiction to give preliminary rulings concerning the interpretation of the Treaty and the validity and interpretation of the acts of the institutions of the Community. The national court is authorised to request the Court of Justice to give such a preliminary. In the case of Broekmeulen CAS [Case 246 / 80] a similar ruling was given as it was ruled that the Dutch medical council had the means to refer to the court of justice. There is a clear separation of functions between national courts on the one hand and the Court of Justice on the other. The Court of Justice does not evaluate the reasons of a national court for deeming that the interpretation of a provision of Community law is necessary for giving judgment in a pending case. It is for the Court of Justice to issue the interpretation of the provision and for the national court to apply it subsequently.

Case 5/77, Tedeschi/Denkavit, para 17-20

According to article 234(3) EC Treaty, a court is under the obligation to refer where a question relating to the interpretation or validity of Community law is raised in a case pending before a court or tribunal of a member-state against whose decisions there is no judicial remedy. Therefore it clear that the tribunal should in fact make a reference for preliminary ruling as it is vital such as in the case of Case 6/64, Costa/ENEL where it Cleary shows that SMC's decision does not have judical remedy. However there are exceptions to obligatory reference, the obligation for the highest court to refer may lose its absolute character in a number of cases.

However the highest court is not obliged to refer either if the question has not yet been answered in the case law of the Court of Justice, but the answer to that question is beyond all doubt. Before it comes to the conclusion that such is the case, the national court or tribunal must be convinced that the matter is equally obvious both to the courts of the other member states and to the Court of Justice. In this respect the national court should bear in mind that. The interpretation of a provision of Community law involves a comparison of the different language versions of the provision concerned. Terms and concepts in Community law do not necessarily have the same meaning as the laws of the various member states; Joined cases 28-30/62, Da Costa and Schaake.

Article 234(2) states that, "that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, requests the Court of Justice to give a ruling". This means that the Tribunal can not choose whether they consider it unnecessary. Whenever a Court or Tribunal satisfies the criteria of Article 234 (3), "whose decisions there is no judicial remedy under national law", it has no discretion and it is required to refer the case to ECJ for a preliminary ruling.

The Court of Appeal and below have a choice, they may refer if they wish or may decide the case without any referral. Even courts at the bottom of the hierarchy can refer questions of law under Article 234, if they feel that a preliminary ruling is necessary to enable a judgment to be given. Lord Denning laid down the guidelines for discretionary referrals:" Necessary" means that the ruling would be conclusive in the case; if other matters remain to be decided then the ruling would not be considered "necessary".

The Court of Justice decides on the validity of acts of the institutions of the Community, i.e. regulations, directives and decisions. The SMC may reject the grounds of invalidity, but it has no power to declare Community decisions to be void. However, if the SMC has serious doubts as to the validity of an act of a Community institution on which a national law or decision is based, the court may, in special cases, suspend the application of such act or may order any other interim relief with regard to such act. The national court should subsequently refer the question of validity to the Court of Justice, setting out why it believes that the Community act must be considered invalid.

Joined cases C-143/88 and C-92/89, Zuckerfabrik, para. 23-32

The Court of Justice is the sole body, which has the competence to interpret Community law. The Court of Justice may not decide on questions relating to the interpretation or validity of provisions of national law, nor is it up to the Court of Justice to apply Community law to the facts in the main action before a national court. However, the Court of Justice is prepared, within certain limits, to reformulate questions, which are too far-reaching.

Preliminary rulings do not bind courts in other cases. However, these courts should realise that the interpretation of the Court of Justice is incorporated in the provisions and principles of the Community law to which it relates. The binding effect of the interpretation then simply coincides with the binding effect of the provisions and principles to which it relates and which has to be observed by all the national courts of the member-states. Therefore a connection is created between the EJC and the tribunal, in other words Maria's case should be referred to sustain constant ruling right through the EC.

The court's task is to ensure that the law is applied uniformly in all Member States. And it does this by performing two key functions. The Commission actions against Member States Is to hear cases to decide whether Member States have failed to fulfil obligations under the Treaties, these actions are usually initiated by the European Commission, although they can also be started by another Member State. The Court of Justice shall have jurisdiction to give preliminary rulings concerning "the validity and interpretation of acts of the institutions of the Union".

Opinions are issued by the Community institutions when giving an assessment of a given situation or development in the Community or individual Member States. In some cases, they prepare the way for subsequent, legally binding acts, or are a prerequisite for the institution of proceedings before the Court of Justice. The real significance of recommendations and opinions is political and moral.

In providing for legal acts of this kind, the draftsmen of the Treaties anticipated that, given the prestige of the Community institutions and their broader view and wide knowledge of conditions beyond the narrower national framework, those concerned would voluntarily comply with recommendations addressed to them and would react appropriately to the Community institutions' assessment of a particular situation.

Recommendations and opinions can have indirect legal effect where they are a preliminary to subsequent mandatory instruments or where the issuing institution has committed itself, thus generating legitimate expectations that must be met.

The concept of direct effect was developed by the European Court of Justice in the case of Van Gend en Loos [1963] ECJ. The ECJ indicated that the concept of direct effect was essential to ensure that citizens of the Community could enforce Treaty obligations against Member States and thereby ensure that Community law was made effective in their national legal systems. The reasoning in the case makes it clear that the European Court of Justice considered that effective remedies were paramount in this new legal order. The case of Van Gend en Loos was also important in establishing the criteria for defining when a particular provision should be directly effective.

Maria can rely on some Treaty articles to enforce her rights against another in the national courts. "The prohibition on discrimination between men and women applies not only to the action of public authorities, but also extends to all agreements...". Some Treaty provisions can produce vertical direct effect if, they are "clear, precise and unconditional" leaving no discretion to Member State as to implementation. The following case demonstrates this principle. Macarthys Ltd v Smith, [1979] ECJ and CA Wendy Smith was able to rely on a treaty provision together with a Directive to sue her former employer for equal pay.

In the case of Van Duyn v Home Office [1974] ECJ, It was held that the useful effect of directives would be weakened if individuals were prevented from relying on them before national courts. Since the directive laid down an obligation, which was not subject to any exception or condition, and by its nature did not require intervention on the part of the Community or Member State, it was to be regarded as directly effective conferring enforceable individual rights, which national courts must protect.

In conclusion, after referring to all relevant cases and treaty articles it is very evident that the SMC should make a referral to the court of justice, simply because it is the tribunal's duty to do so. Legislation should be interpreted according to the relevant directives. National courts must as far as possible interpret national law in the light of the wording and purpose of the Directive in order to achieve the result pursued by the Directive. Von Colson v Land Nordrhein-Westfahlen [1984] ECJ is a perfect example of this.