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ID number:953625
Published: 10.06.2005.
Language: English
Level: College/University
Literature: 15 units
References: Used

Article 234 is the one of the most significant articles relating to the relationships of legal systems between national and community systems. This is so because the court of justice have jurisdiction to give preliminary rulings with reference to the interpretation of EC treaty, and the authority and interpretation of acts of the institutions of the Community as well the interpretation of the statutes of bodies established by an act of the Council .The key role of Article 234 was acknowledged by the Court in the Van Gend en Loos judgment, where it held that one of the reasons for upholding the direct effect of certain provisions of Community law was the subsistence of the reference procedure .
Article 234 creates influence, and in some conditions enforces a duty, to refer questions concerning the interpretation of European law to the Court of Justice. It plays a key role in guaranteeing the protection of the Community character of the law recognized by the Treaty, and has the object of ensuring that in all conditions this law is the same in all states of the Community. The obligatory reference applies only where there is a lack of judicial remedy. Also in order for there to be a duty to refer, the question must be “necessary. ”
Article 234 lays down the preliminary rulings procedure, whereby national courts refer questions of Community law to the European Court of Justice (ECJ) and through it any cases that depend on an aspect of Community law for a judgment maybe referred to the ECJ. These cases also include individual cases where individual rights need to be protected. However, there are some occasions on which the ECJ will not agree to a reference. For example, in such cases as that of Foglia v Novello No.1 and No.2 these cases centered on a believed dispute between Foglia over a clause in a contract, which had actually been intentionally included to manufacture the legal challenge. The ECJ held that they could only rule on matters that involved a genuine dispute. The two parties tried again in No.2, this time asking the ECJ to rule on exactly what Article 234 meant, but again the ECJ said they could only rule on genuine disputes and not where parties had used a “procedural device to induce a ruling. ” Another situation where the ECJ have refused to allow an Article 234 reference is academic disputes because questions raised are too hypothetical, and the court does not “rule before those elements of fact and national law does not provide necessary and useful answer to the questions .” It is significant to recognize that Article 234 is not an appeals procedure and if the court wishes to simplify the meaning of a piece of community law it should make a reference earlier to deciding the case itself.
Moreover, once an Article 234 reference has been made the ECJ should not get involved in any the facts of the case, or the comment upon the legality of any national legislation in relation to Community law . Therefore there is strict environment for individuals to actually protect their rights and in some cases Article 234 does not successfully enough stress them.
Article’s 234 mechanisms is an essential process in the achievement of the “new legal order” identified for the first time in Van Gend en Loos. This “new legal order” is an order which supplies for the supremacy of EC law over national law . Under Article 234 in any issue concerning a point of EC law, any national court may postpone proceedings and submit an application to the ECJ for a preliminary ruling.

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