Nordsee vs Eco Swiss case law - Quick Consulting

Nordsee vs Eco Swiss cxase law effects and explanations

Module: Dreptul UE si Arbitrajul

Florin Vasilescu

Introduction Nordsee vs Eco Swiss case law

One may say that EU competition law enforcement through international commercial arbitration suffers from a kind of imbalanced control mechanism; if compared with normal private enforcement. This stems from the case law of the Court of Justice of the EU. In Nordsee, the Court stated that arbitrators cannot refer a question to it for preliminary ruling.

• It is immediately obviously that the image of the Nordsee and Eco Swiss judgement is quite distinct from ordinary judicial EU (competition) law enforcement; which is based on the respective roles of the national and Eu Courts and on the preliminary reference mechansim.

It is very easy to interpret or view that, in the Nordsee case, the Court was confronted with the difficulty of the exact definition of the scope Art. 267 TFEU; and in particular the question of how to intercept the notion of “court or a tribunhal Member State”

 Art. 267 TFEU: The Court of Justice of the European Union shall have jurisdiction to give a preliminary ruling on:

(a) the interpretation of the Treaties;

(b) the validity and interpretation of acts adopted by Union institutions, bodies, offices or agencies;

Where such a matter is raised before a court of a Member State, that court may, if it considers that a decision in that regard is necessary in order to give judgment, request the Court to give a ruling on this issue.

If such a question is raised in a case pending before a national court whose decisions are not subject to any domestic remedy; that court is necessitate to bring an action before the Court.

Where such a matter is raised in a case pending before a national court concerning a person subject to a custodial measure; the Court shall act as quick as possible.

Force of arbitration

The problem arose from the force of the arbitrator to render an award haveing the same power of res judicata as judgments of State courts or tribunals under German law. The fundamental aim of the preliminary reference procedure, which is to ensure the uniform application of  EU law, was at stake and it may be affirmed that, by concluding that an arbitrator is not to be considered a “court or tribunal of a Member State”, the Court decided to run the risk of undermining that system.

By saying that it lacked jurisdiction to respond to an arbitrator, the Court of Justice opt to limit the functioning of the preliminary reference mechanism, permiting only the judge entrusted to review the validity of the arbitral award to refer a preliminary reference question. In some cases judicial review of an award might never occur, most evidently because the parties deem it unnecessary. Where judicial review does take place, the procedure may suffer from a number of limitations, depending on national procedural rules. In particular, such review will not cover the merits of the award.

Explications

One may wonder why the Court of Justice decided to run the risk of undermining the preliminary reference mechanism, which had already proved to be an invaluable and extremly precious tool to ensure the uniformity of the application of Community law. A series of interpretations can be developed, but for our purposes the important point is that the aim of the Court might well have been to secure what may be called the purity of the preliminary reference mechanism by leaving to the remit of proper national judges the power to employ it. With Nordsee, then, the Court chose it’s interlocutors. But litigation before arbitrators was gaining growing significance in transnational dispute resolution. Therefore, the solution provided in Nordsee had to be completed.

These ideas are inspired by Robert Cisotta’s article:

1.Regulating the prejudicial issue in the Treaty on the Functioning European Union (TFEU)

Under Art. 267 TFEU the national courts have the right, namely the obligation to ask the Court of Justice of the European Union to do so gives a preliminary ruling on matters of law.

Article 267 TFEU stipulates:

The Court of Justice of the European Union shall have jurisdiction to give judgment with regard to:

(a) the interpretation of the Treaties;

(b) the validity and interpretation of acts adopted by the institutions, bodies, offices or agencies of the Union;

If such a matter is raised before a court in a Member State, this court may, if it considers that a decision in this issue is necessary in order to give a ruling, to ask the Court to do so pronounced on this issue.

If such a point is raised in a case pending before to a national court whose decisions are not subject to any right of appeal it is for that court to bring the matter before the Court.

If such a point is raised in a case pending before to a national court on a person subject to a private measure of freedom, the Court shall decide as soon as possible.

2. The (partly) binding character of the CJEU’s preliminary ruling

The preliminary ruling of the CJEU is binding on the referring court; but only in relation to the dispute in which the question was put preliminary.

Where the CJEU has been seised by a court whose decision it is subject to appeal; the CJEU ‘s preliminary ruling is also mandatory the court hearing the appeal in this dispute.

In fact, the CJEU’s decision is binding on everyone’s courts Member States; because the court intends to interpret the rule differently European Court of Justice; which the CJEU has already interpreted, has the obligation, prior to its decision, to apply to the Court of Justice of the European Union; motivating its divergent opinion and requesting a new ruling on the matter under discussion (“referral of divergence”).

3. The scope of art. 267 TFEU

Article 267 TFEU applies to:

– all courts of the Member States, and

– in all cases,

– including emergency procedures.

To the extent that art. 267 TFEU provides for the obligation to refer the CJEUby the preliminary question procedure; it will not be analyzed whether by the notification The CJEU would lead to a delay in the trial. For accelerating purposes proceedings before the CJEU, art. 267 par. 4 TFEU provides that this court should shall decide as soon as possible when the matter in question is invoked pending proceedings before a national court on a person subject to a deprivation of liberty measure. In other cases, the question procedure may be made as a Preliminary Emergency Procedure (PPU); at the request of the national court; (in accordance with the provisions of Article 104 of the Rules of Procedure of the Court); when the circumstances relied on by the court national justification for the special urgency in the ruling on the question raised by 3 preliminary title. In this case, the court will immediately determine the term for judgment.

4. Division of attributions between the CJEU and the national court

The CJEU has only the obligation to interpret Community law, not a its application in individual individual cases.

The CJEU develops an abstract premise, taking into account the peculiarities case. The Court will make no appraisal on the merits of the case and will not pronounce it judgment on the case. The latter falls within the exclusive jurisdiction of the courts national.

5. Meaning of the request for a preliminary ruling

Significant significance of compliance by the national court with the obligation to request the CJEU to give a preliminary ruling (in accordance with Article 267 TFEU); it follows from the purpose of the question referred for a preliminary ruling:

• Ensure uniform and harmonized application of Community law at EU level European = preserving the unitary character of Community law

To create and ensure a single area of ​​justice in the Union It is necessary for EU law to be understood and applied in a unitary manner in all Member States. The only means the EU has for this purpose is the procedure the prejudicial issue.

If the interpretation of  EU law would remain at the discretion of national courts; whether they should decide on validity and interpretation acts adopted by the institutions, bodies, offices or agencies of the Union would be reached legal uncertainty within the Union; as courts in the Member States would could give a different interpretation to the same issues.

• The link between European Union law and national law

As a rule, the proceeding of the question raised concerns compatibility between certain national rules and European law, and the answer to this question depends on how to interpret relevant European law. Into the 4 according to art. 267 TFEU, it is not for the CJEU to decide on legality the measures adopted under national law or its interpretation.

• Ensuring the rights conferred on the person by European Union law

Obligation of the court whose decision is no longer subject to appeal provided for by national law to seek a preliminary ruling under the conditions provided in art. 267 TFEU; also serves to avoid the situation in which it could be harmed rights conferred on the individual by European Union law.

6. Obligation to refer the CJEU

a) The court whose decision in the specific case is not subject to any means an internal law attack is required to address the CJEU; when they are meeting the conditions provided by art. 267 TFEU, that is to say; if it considers that a decision of the Court of Justice of the European Union is necessary to pronounce it decision on:

• the interpretation of the Treaties;
• the validity and interpretation of acts adopted by the institutions, bodies, offices or Union agencies.

b) The “divergence” of the CJEU

National courts are required to comply strictly with the preliminary ruling pronounced by the CJEU. Where the national court wishes to make a different decision a preliminary ruling by the CJEU; is required to refer the case to the CJEU by request preliminary, according to art. 267 TFEU, setting out the reasons for the court is intended to deviate from the preliminary ruling in question. This one the obligation to refer to “divergence” exists irrespective of whether the national court; is a court of last resort or its judgment can be appealed.

The same applies if the court wishes to suspend the execution of a national administrative act based on European Union law.