The Gazette 1985

GAZETTE

SEPTEMBER 1985

CAMPUS OIL

Martin Hayden, B.C.L.

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:

" . . . 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

Bulmer

-v-

Bollinger

(1974)

, 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

. 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

and the

Western Health Board

-v-

Quigley

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

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

, 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