By Iheukwumere Duru
[Read part one]
SOME OF THE REASONS FOR THE INVOLVEMENT OF NATIONAL COURTS AND TRIBUNALS
National courts are constitutionally empowered to adjudicate on disputes over rights and obligations within their domestic legal order. For instance, under the 1999 Nigerian Constitution, Section 6(1), states as follows: ‘The Judicial powers of the Federation shall be vested in the judicial courts to which this section relates, being courts established for the Federation.’ Section 6(6) provides:
The Judicial powers vested in accordance with the foregoing provisions of this section …
(b) Shall extend to all matters between persons, or between government or authority and any person in Nigeria, and to all actions and proceedings relating thereto, for thedetermination of any question as to the civil rights and obligations of that person.
Likewise, Article 159 (1) of the 2010 Kenyan Constitution provides that the ‘Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution.’ No other body or authority
has power to perform such functions.
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The sole competence of national judicial authorities in their domestic legal order is one of the constituents of national sovereignty. It is implicitly recognised by various international legal instruments. For instance, Article II of the 1907 Convention for the Establishment of the Central American Court of Justice stipulates as follows:
This Court shall also take cognizance of the questions which individuals of one Central American country may raise against any of the other contracting Governments, because of the violation of treaties or conventions, and other cases of an international character …
provided that the remedies which the laws of the respective country provide against such violation shall have been exhausted or that denial of justice shall have been shown[emphasis added]
This implicitly acknowledges the sovereignty of the Members States with regard to their domestic legal order. Similarly, Article 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms provides that: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ Individuals who claim to be victims of a violation of rights guaranteed by this legal instrument can take their complaints to the judicial body set up under the instrument, but only after exhaustion
Of all domestic remedies, ‘according to the generally recognised rules of international law’ (Art. 35 of Protocol No. 11 to that Convention). Also, Article 7 of the African Charter on Human and Peoples’ Rights stipulates that ‘Every individual shall have the right to have his cause heard.
This comprises: (a) the right to an appeal to competent national organs against acts of violating his fundamental rights as recognised and guaranteed by conventions, laws, regulations and customs in force’
Furthermore, under the terms of the Preamble and of Article 1 of the Rome Statute of 17 July 1998 which established the International Criminal Court (ICC) to try individuals for the most serious crimes defined therein, the ICC is ‘complementary’ to national courts. In other words, the latter retain their sovereign right to try such cases within their domestic legal order; the ICC exercises its jurisdiction only when they (the national courts) are unwilling or unable for one reason or another to investigate and prosecute such crimes.
OVERVIEW OF EEC/EU PRACTICES
Under ‘economic community law’ (and here we base ourselves on the practices of the European Economic Community (EEC) which can be said to represent international best practices not least because the EEC, which developed into the European Union, is
globally regarded as the most advanced and most successful regional economic community), several decisions of the European Community Court of Justice (ECJ) underline the role of national courts in the enforcement of Community law. For
example, in case Van Gend en Loos the Court ruled that: …the Community constitutes a new legal order of international law (…) the subjects of which comprise not only Member States but also their nationals… Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage (…) Article 12 [of the founding Treaty] must be interpreted as producing direct effects and creating individual rights which national courts must protect …
Likewise, in case Costa v ENEL (1964) the Court decided: By contrast with ordinary international treaties, the Treaty has created its own legal system which, on the entry into force of the Treaty, became an integral part of the legal systems of the Member States and which their courts are bound to apply. (…) Article 53 [of the EEC Treaty] constitutes a Community rule capable of creating individual rights
which national courts must protect.
The ECJ uses words like ‘must protect’, ‘are bound to apply’, ‘must apply’ or similar expressions, indicating that national courts are under a duty to act. It is important to note that the fact that the Commission of the EEC/EU, or Member States, can bring enforcement proceedings before the Community Court against a Member State which fails to comply with Community obligations does not prevent individuals from bringing an action before a national court against that Member State if the latter’s behaviour infringes their Community rights.
This position which was laid down by the Court in case Van Gend en Loos has been adopted by several other regional economic communities. For example, under the terms of Article 24 of the Treaty Creating the Court of Justice of the Andean Community, if a Member Country considers that another Member Country has failed to comply with its Community obligations, it can take its claim to the General Secretariat, initiating enforcement proceedings at the Community level.
At the same time, Article 31 of the same Treaty states that ‘Natural or artificial persons shall have the right to appeal to the competent national courts, as provided for by domestic law, should Member Countries fail to comply with Article 43 of this Treaty in the event that the rights of those persons are affected by that noncompliance.’ The two procedures, however,
cannot be used simultaneously.
It is clear from the foregoing that national courts play a vital role in the enforcement of the law of an economic community. In fact, the community might not function properly if enforcement of its law were left exclusively to the judicial organ set up under the founding treaty, which may be located thousands of miles away from several member states, making access to it excessively costly, or unaffordable, for the nationals of these member states, and therefore preventing them (those nationals) from exercising their fundamental human right to seek ‘an effective remedy’ if their community rights are violated.
However, for national courts to exercise their jurisdiction in the realm of community law, the latter must be integrated into the national legal system of the member states; hence the question, when and how does community law enter the national legal order or, simply put, when does it become part of the national law enforcement of which falls within the jurisdiction of national courts and tribunals?
To answer this question, it is necessary to examine very briefly the major sources of the EEC/EU law, namely (i) Treaties and Protocols attached to them (ii) Binding community acts and (iii) Case law of the Community Court of Justice, particularly the date of their
entry into force.
(i) Treaty
The Treaty is the basic legal instrument, the primary source of law, which underpins all other pieces of Community legislation. Designed to establish a common market through the abolition of all obstacles to free movement of persons, goods, services and capital, as well as obstacles to the rights of residence and establishment, it affects, not only the Member States, but also individuals (natural and juridical persons), for whom it creates rights and obligations which, according to the ECJ, can be invoked in national courts.
Consent to be bound by it is usually expressed through ratification4. Unlike an ordinary international treaty, however, it takes effect automatically within the domestic legal order of the Member States from the date it enters into force in those Member States, provided that the instruments of ratification have been deposited with the designated depositary before that date.
(ii) Binding Community Acts
Community institutions have power to enact secondary legislation in pursuance of the provisions of the Treaty. This legislation which is binding in the Member States takes the forms of regulation, directive and decision. Article 189 of the EEC Treaty defines a Regulation as having general application, binding in its entirety and directly applicable in all the Member States.
Thus it enters the domestic legal order of the Member States uponits coming into force, without any national measure being needed to “receive” it intonational law. A Directive is defined as binding, as to the result to be achieved, upon each Member State to which it is addressed, but leaves to the national authorities the choice of form and methods.
In other words, a Directive is used for a particular purpose and is binding only as far as that purpose is concerned; it stipulates a time-frame within which its provisions will have to be brought into the domestic legal order; however, national authorities are free to choose, ‘in accordance with their national circumstances and legal systems’ (Article 6, Directive 75/117/EEC), the appropriate national legal instrument(primary or delegated legislation) to achieve this.
Thus, unlike a Treaty or a Regulation, a Directive is not directly applicable: it enters the legal order of Member States through the national implementing instrument. A Decision is binding in its entirety upon those to whom it is addressed (Member States, natural or legal persons). It takes effect upon itsnotification to the addressees or on the date specified in it.
(iii) Case Law of the Community Court of Justice
The ECJ plays a crucial role in the process of economic integration. In fact, it can be said to be the prime mover of the process in Europe. When considering cases, it also takes into account what it calls the general principles of law, including respect for fundamental human rights, derived from various sources. Its case law has considerable impact in the Member States. Some of its decisions lay down principles which are deemed to be necessary for the effective functioning of the Community.
Examples of these are the decisions in the cases cited above (Van Gend en Loos, Costa v ENEL). Like the Treaty and Community Acts, the decisions of the ECJ are binding in the Member States – from the date of the ruling – and constitute an important source of national law.
Primacy or supremacy of Community law
This is the idea that, once it enters the national legal system by means, or by virtue, of the legal instruments examined above, Community law takes precedence over any rule ofnational law inconsistent with it in the area covered by the Treaty. Member States are obliged to amend existing laws accordingly and to enact laws in future in such a way that they do not conflict with Community law.
In case Simmenthal (1978), the ECJ reaffirmed the idea which it had developed earlier, in these words:
It follows from the foregoing that every national court must, in a case within its jurisdiction, apply Community law in its entirety and protect rights which the latter confers on individuals and must accordingly set aside any provision of national law which may conflict with it, whether prior or subsequent to the Community rule (…) it is not necessary for such courts to request or await the actual setting aside by the national authorities empowered so to act of any national measures which might impede the direct and immediate application of
Community rules…
Thus, a Member State cannot, for instance, refuse Community nationals from other Member States the right to set up and manage a business within its territory under the same conditions as for its citizens basing itself solely on its own legislation which subjects non-native Community nationals to the conditions laid down for ‘foreigners’ in terms of to commercial activities. Such domestic legislation which is incompatible with the Community law – the right of establishment includes the right to set up and manage enterprises, in particular companies, under the same conditions as for nationals of the host Member State (Art. 52 paragraph 2 of the EEC Treaty)5, subject to derogations justified on the grounds of public security, public health and public policy – must be set aside, or rather ‘disapplied’, by the national court.
Initially, several courts of the EEC Member States found it very difficult to accept the primacy of Community law, not least because it was not contained in any provision of the Treaty, and resisted it vigorously. In France, for instance, whereas the Cour de Cassation, the highest court in the ‘ordinary’ legal system, accepted the idea in 1975 (case Société des Cafés Jacques Vabre) on the basis of Article 55 of the Constitution which provides that ratified and published international treaties take precedence over national law, the Conseil d’Etat, the highest court in the administrative legal order, continued to reject it for a long time, arguing that a judge could neither review nor ignore a law enacted by the legislature.
It however dropped its restrictive approach in case Nicolo in 1989. In the United Kingdom, although the European Communities Act 1972 recognized the supremacy of Community law over conflicting provisions of domestic law of the Member States, it was only in 1990 that the doctrine became entrenched in the UK legal system following the decision in case Factortame (no.2).
Today, the doctrine is one of the cornerstones of Community law. It is a creation of the ECJ, which goes to show how crucial the work of the Community Court is to the advancement of the integration process.
Preliminary ruling procedure
National courts have competence to deal with cases involving directly effective community rights within their domestic legal order.
However, this does not necessarily mean that the community court has no say in such cases. According to the EEC Treaty, the
primary role of the Court is to ensure that the law is adhered to in the interpretation and application of Community legal instruments.
It achieves this through, inter alia, a very important mechanism known as the preliminary ruling procedure (EEC Treaty, Article
177).
Under this mechanism, if a case being heard by a national court raises a particular question of Community law (such as a question concerning the interpretation of a Treaty provision or the validity and interpretation of a Community act) a decision on which is
necessary for the case to be determined, that particular question can – and in some cases must – be referred to the Community Court for a preliminary ruling; upon receipt of the decision of the Community Court on that particular question, the national court resumes proceedings to give final judgment, applying the ruling of the Community Court.
Thus the latter is able to ensure the proper application of the provisions of Community legal instruments, to further clarify a Community concept, to formulate principles which are necessary for the full realization of the objectives of the Treaty, in short, to drive the
integration process.
Following in the footsteps of the EEC/EU several other regional economic communities adopt the same solution. For instance, Article XIV of the Agreement Establishing the Caribbean Court of Justice states as follows:
Where a national court or tribunal of a Contracting Party is seised of an issue whose resolution involves a question concerning the interpretation or application of the Treaty establishing the Caribbean Community and amendments there to], 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.
The mechanism has the advantage of preserving the right of the judicial authorities of the Member States to adjudicate over disputes involving rights and obligations within their domestic legal order while at the same time ensuring that the provisions of Community law which take precedence over those of national law, are fully respected, and are interpreted uniformly, across the region. It thus contributes to the effectiveness of Community law.
It is noteworthy that many of the landmark decisions of the ECJ – including those mentioned earlier – which laid down some of the principles of Community law were made through this mechanism. In case Van Gend en Loss for instance, a dispute between the Dutch company and the Dutch Customs and Excise led to the national court before which the matter was pending requesting a preliminary ruling from the ECJ on whether a particular provision of the Treaty of Rome conferred rights on individuals which could be enforced in national courts.
The ECJ used the opportunity to lay down one of the doctrines of Community law referred to earlier. It was also through the mechanism of preliminary ruling – and not through a direct action involving human rights – that the protection of fundamental humanrights was brought into the Community legal system (see Stauder v Ulm (1969) and Internationale Handelsgesellsschaft mbH v. Einfuhr-und Vorratsstelle fur Getreide und Futtermittel (1970).
It is important to note that the preliminary ruling procedure is not an appeals procedure nor is it conditional on the exhaustion of internal remedies.
In fact, under this mechanism the Court does not deliver judgment: it gives a preliminary ruling while the national court or tribunal which made the reference delivers judgment – which increases the chances of the judgment being accepted by the Member States. In Costa v. ENEL (1964), the ECJ stated that the procedure ‘is based upon a clear separation of functions between national courts and the Court of Justice (and) cannot empower the latter either to investigate the facts of the case or to criticize the grounds and purpose of the request for
interpretation.’
TO BE CONTINUED
