The Gazette 1985

GAZETTE

SEPTEMBER 1985

CAMPUS OIL f'

by Martin Hayden, B.C.L.

O pe of the basic problems of E.E.C. law is that of the distinction between 'direct effect' and 'direct appli- cability'. To be directly effective, the provisions in question must give rise to rights in individuals which national courts are bound to safeguard. Article 177 gives the national court the discretion to refer questions on E.E.C. law to the Court of Justice for a preliminary ruling; it does not. bestow on individuals any rights (except perhaps para. 3), so therefore it is not directly effective. It is, however, directly applicable in that it has direct application in the domestic legal order. This is assured by the words of the Advocate-General in the Van Gend & Loos case: 1 " . . . clearly intended to be incorporated into the national law and to modify it or 'supplement i t ' ". Since article 177 is directly applicable, national pro- visions may establish the relevant details of the pro- cedure, but they neither create nor may they condition the capacity to make the reference. This was clearly seen in Bulmer -v- Bollinger (1974) 2 , where Denning M. R. attempted to lay down guidelines. These were criticised by Brown and Jacobs in 'References to the European Court' Appendix 1, more importantly, they are incon- sistent with E.E.C. law to the extent that they fetter the discretion vested directly in national courts: Rheinmilhlen- Dusseldorf . (No. 2):- "It follows that national courts have the widest discretion in referring matters to the Court of Justice if they consider that a case pending before them raises questions involving interpretation . . . ". The question still remains whether there can be an appeal against an Article 177 reference within the dom- estic legal order. The Court of Justice in the Bosch* case has laid down that the question as to whether or not an appeal would be allowed is one that the national legal order must answer. "Just as the Treaty does not prevent the national court from taking cognisence of the petition, but leaves the determination of its admissability to the national law . . . ". The Court even stated that the fact that there is an appeal does not take away its jurisdiction to deter- mine the matter. This interpretation of the Bosch decision is one that Advocate-General Roemer explicitly accepts in his judgement in the Chanel case 5 . That case goes on to establish that where an appeal against a national decision to refer has the effect of suspending execution of the national judgement and the national court communicates this fact to the Court of Justice, the latter will stay proceedings. Further support is given to this interpretation by Rheinmtihlen-Dusseldorf , where it was held that Article 177 does not prevent a reference being subject to the normal judicial remedies - i.e. appeal to a superior court. It is imperative to note, how- ever, that an appeal will not lie if its purpose is to estab- lish that the referring court has exercised its discretion improperly:- "It follows . . . that a rule of law whereby a court is bound on points of law by the ruling of a superior court, cannot deprive inferior courts of their power to refer questions of interpretation.''

An appeal shall properly lie, therefore, on the ground that national law, correctly interpreted, would dispose of the case, and a ruling of the Court of Justice would be otiose. I will now turn to the judgement in the Campus Oil case. On the facts of the case, Mr. Justice Walsh was correct in disallowing an appeal, for the two reasons given by the defendants: such reference was not necess- ary or alternatively, it was premature to do so; these reasons were concerned solely with the judge's exercise of his discretion. The learned judge in his decision has in effect, established a total and absolute prohibition on any form of appeal, even in the limited sense allowed by the Court of Justice. A domestic legal order may have such a prohibition, if that is the way it wishes to imple- ment the procedure, however, in Ireland it is not com- petent for a judge to establish it. There are three main reasons why he cannot. First, the Oireachtas is still the sole legislative body in the areas where jurisdiction has not been handed over to the E.E.C. Secondly, the courts have held that unless there is an express statutory bar, an applicant cannot be denied a judiciary remedy. The cases that establish this are McCabe -v- Lisney & Sons 1 and the Western Health Board -v- Quigley 8 . Both of these concern s. 10(4) of the Unfair Dis- missals Act 1977, which allows a full appeal from the Employment Appeals Tribunal to the Circuit Court. This Act did not say that the Circuit Court's decision was final, so both courts held that the Circuit Court action was 'a civil action matter within s. 38 of the Courts of Justice Act 1936' and allowed the appeal to the High Court. The combination of these two facts prevent a judge from erecting barriers. The final reason, given by Mr. Justice Walsh for the lack of necessary jurisdiction, is that the Third Amend- ment of the Constitution Act 1972, Part 2 of the Schedule uses the word 'necessitated'. As already established, an absolute prohibition on appeals is not necessitated, there- fore Mr. Justice Walsh cannot use this provision. It is submitted therefore that it was incorrect, without legis- lative intervention, for Mr. Justice Walsh to say that a judge has an 'untrammeled discretion'. A more correct adjective would be a 'widest discretion', as stated by the Court of Justice in the Rheinmtíhlen-Dusseldorf case 1 . The Court of Justice has made it clear on several occasions that it will not adjudicate on the validity of compatibility with E.E.C. law of national law. In the second Rewe-Zentrale case 9 , it was held that 'although in the context of proceedings under Article 177, it is not for the Court to rule on the incompatability of the pro- visions of national law with the Treaty, it does, on the other hand have jurisdiction to provide the national court with all the criteria of interpretation relating to Community law which may enable it to judge such incompatibility'. Bearing this in mind, I find Mr. Justice Walsh's statement: 'I must decide this question in the context of Irish law only" strange, since in doing so he is ignoring criteria laid down by the Court of Justice. Surely the whole basis of Article 177 is to create uni- formity of interpretation; if Mr. Justice Walsh ignores 347