The Appeal of an Article 177 EEC Referral
| Author | Dermot P. J. Walsh |
| Date | 01 November 1993 |
| Published date | 01 November 1993 |
| DOI | http://doi.org/10.1111/j.1468-2230.1993.tb01914.x |
November
19931
7he
Stock
Exchange
Case
The Appeal of an Article
177
EEC
Referral
Dermot
P.J.
Walsh”
Introduction
Article
177
of the Treaty of Rome provides a vital mechanism through which
national courts and tribunals can obtain authoritative rulings on the interpretation
and, where applicable, the validity of a Community law measure which has arisen
in proceedings before them. A request to resort to this mechanism, however, can
pose a dilemma for the court or tribunal from whose decision there is a right of
appeal within the domestic legal order. It is under no obligation to refer. If, for
example, such a court decided to refer, it may well be imposing further delay,
expense and uncertainty on the litigants, not to mention the diminution in its own
authority that may be implicit in such a move. If, on the other hand, it opts to
interpret the Community law measure itself, the risk of error will always be very
real as these measures are framed in the civil law mode, while a British court is
versed in the common law approach to statutory interpretation.
A
wrong
interpretation would not only be
a
direct source of injustice to the litigants
involved, it could also burden them with the delay and expense of domestic appeals
and the likelihood of an ultimate referral to the European Court of Justice. If the
error was not corrected, either through appeal or referral, the result would be that
the Community law measure in question would be applied differently in the United
Kingdom compared to the rest of the Community. Given the options, it would be
understandable if courts preferred a referral where there was the least doubt about
the correct interpretation of the measure in question.
The jurisprudence of the European Court of Justice offers strong encouragement
to national courts to exercise their power of referral liberally.’ English courts, by
comparison, have tended to follow the lead of Lord Denning in
H.
P.
Bulmer
v
J.
Bollinger
SA,2
where he exhorts them to rely less on the discretion and more on
their capacity to interpret Community law themselves3 The recent decision of
the Court of Appeal in
R
v
International Stock Exchange
of
the United Kingdom
and the Republic
of
Ireland, ex parte Else and Others4
(the
Stock Exchange
case), however, may herald a change in this approach. The judgment of Sir
Thomas Bingham MR in this case offers a significant reformulation of Lord
Denning’s principles governing how a lower court should approach the issue
of
a
referral under Article
177.
The apparent effect of this reformulation is to weight
the Article
177
procedure heavily in favour of referrals being granted by lower
courts. Paradoxically, it may also enhance the prospects of a lower court’s
decision to refer being overturned on appeal. Indeed, the
Stock Exchange
case
itself happens to be the only reported example of such an occurrence to date.
*Senior Lecturer in Law, University of Ulster.
1
For
an analysis, see David O’Keefe, ‘Appeals Against an Order to Refer Under Article 177
of
the EEC
Treatv’ (1984) 9 ELR 81.
2
3 Lawrence Gormley suggests that the English courts grant the guidelines an undue degree of respect:
‘The Application of Community Law in the United Kingdom 1976- 1985’ (1986) 23
CMLR
287. The
dangers inherent in this are illustrated by a number of cases in which the English courts have
misinterpreted provisions of Community law which have arisen before them. See, for example,
J.
Steiner,
EEC
Law
(London: Blackstone Press, 2nd ed, 1990), at
p
268.
4
[1993]
1
All ER 420.
0
The Modern Law-Review Limited
1993
88
1
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