Reviewing some of the judgments handed down recently, this judgment came up as making clear what a member State should do if a judgment of the Court of Justice handed down in a preliminary ruling procedure declares that national legislation is incompatible with EC law.
What we'll concentrate on now is the obligation of a member State as a consequence of a preliminary ruling.
It is obvious that the referring court must apply the ruling of the Court of Justice to the case of which it is seised. But what of the obligations of the member State more generally if its legislation is held incompatible with EC law ? The judgment does give a timely reminder that a member State must adapt its legislation following a judgment given by the Court on an order for reference from which it is apparent that national legislation is incompatible with EC law.
The Court recalls first that under the principle of cooperation in good faith laid down in Article 10 EC, member States are required to nullify the unlawful consequences of a breach of EC law (Case C-201/02 Wells, at paragraph 64).
The Court makes clear that following a judgment given by the Court on an order for reference from which it is apparent that national legislation is incompatible with EC law, it is for the authorities of the member State concerned to take the general or particular measures necessary to ensure that Community law is complied within that state (see, to that effect, Wells again, paragraphs 64 and 65, and Case C-495/00 Azienda Agricola Giorgio, Giovanni e Luciano Visentin and Others, at paragraph 39). While member States are free to choose the measures to be taken, they must in particular ensure that national law is changed so as to comply with EC law as soon as possible and that the rights which individuals derive from EC law are given full effect.
Finally the Court held that in situations of discrimination contrary to EC law, for as long as measures reinstating equal treatment have not been adopted, observance of the principle of equality can be ensured only by granting to persons within the disadvantaged category the same advantages as those enjoyed by persons within the favored category. In such a situation, a national court must set aside any discriminatory provision of national law, without having to request or await its prior removal by the legislature, and apply to members of the disadvantaged group the same arrangements as those enjoyed by the persons in the other category (Case C‑408/92 Avdel Systems, at paragraphs 16 and 17; Case C‑442/00 Rodríguez Caballero, paragraphs 42 and 43, and Case C‑81/05 Cordero Alonso, at paragraphs 45 and 46).
A while ago, the Commission proposed (COM(2006) 346 final) that the right to refer preliminary questions to the Court of Justice under Title IV of the EC Treaty should be extended to courts other than those of last resort.
Currently, work is under way to set up a special procedure to enable the Court of Justice to answer preliminary questions quickly in cases of urgency in the areas covered by Title VI of the EU Treaty and Title IV of the EC Treaty.
The Court of Justice has submitted two proposals to the Council. The first is for amendments to the Statute of the Court of Justice because it is necessary to provide for a derogation from Articles 20 and 23 of the Statute to set up an expedited, accelerated and/or urgent preliminary reference procedure. You can find the proposed amendment in Council Document 11824/07 here.
The second proposal is for amendments to the Rules of Procedure of the Court. The amendments govern an urgent preliminary ruling procedure for certain references for a preliminary ruling in the area of freedom, security and justice. You can find the proposed amendments in Council Document 11759/1/07 here. The Court explains that the proposed amendments allow for all the Member States to participate in a manner comparable to what currently applies in normal proceedings for a preliminary ruling, in particular as regards the availability of translations, but which, for most member States, limits the procedure to the oral part. Save in exceptional cases, there is also a written part, but, for maximum speed, that part is limited to the parties and persons conversant with the language of the case, that is to say, the parties to the main proceedings, the Member State from which the reference is made and the institution or institutions affected by the reference. The proposed amendments are followed by an explanation by the Court.
Those proposals follow-up on the Court's discussion paper of September 25th 2006 (also available as Council Document 13272/06), supplemented on December 14th 2006 (also available as Council Document 17013/06). The United Kingdom had made its position known on the first discussion paper in Council Document 16705/06. The President of the Council responded on April 20th 2007, following discussions regarding the introduction of such a procedure which took place within the Council on the basis of the Court's two discussion papers. Presumably, the final version of that letter of April 20th 2007 reflects the contents of this draft made available in the Council's registry of documents.