The Preliminary Reference Procedure of the ECOWAS Community Court of Justice: Why Would the Courts Not Play?

The Preliminary Reference Procedure (or Referral Procedure), one of the hallmarks of European Union law, was introduced into the legal framework of the Economic Community of West African States (ECOWAS) in 2005 when the 1991 Protocol¹ that established the ECOWAS Community Court of Justice (ECOWAS Court) was amended.² In addition to whatever other reasons the ECOWAS legislator might have had for introducing it, the procedure was arguably introduced as a mechanism to enhance the role and involvement of the ECOWAS Court in the integration process. Emerging from a four-year period of complete or near-complete judicial inactivity between 2001 (when the Court was inaugurated) and 2004, the jurisdiction of the ECOWAS Court was expanded in 2005, and access to the Court liberalised and extended to national courts and non-state actors, raising the expectation that the workload of the Court would increase (partly) by the flow of referrals from the national courts of ECOWAS Member States.

While the expansion of the jurisdiction of the ECOWAS Court to cover complaints of human rights violations by non-state actors has contributed in no small measure to increasing the docket of the Court since 2005, the Preliminary Reference Procedure has remained unutilised. As of April 2024–19 years after its introduction – no single referral has been received by the ECOWAS Court from any national court. One consequence of this reality is that the ECOWAS Court has been forced to shift its focus from the economic integration agenda and process of ECOWAS to the field of human rights, earning a reputation as a formidable human rights court in West Africa.

In Europe, on the other hand, the preliminary reference procedure has been a tremendous success story since the 1960s, leading some commentators to refer to it as the ‘keystone’ of the European Union's legal system.³ By one account, it is through ‘the preliminary referral procedure and the willingness of national courts to bring cases to the ECJ’ that ‘the legal and political content of the European Community has gradually, but fundamentally, been transformed.’⁴ In other words, it is through the preliminary reference procedure that the European Court of Justice (ECJ, now known as the Court of Justice of the European Union (CJEU)) has been able to shape integration in Europe. Scholars of European integration agree that the success of the procedure and the consequent impact that the CJEU has made is ‘as a result of the cooperation of national courts.’⁵ In simple terms, preliminary reference works in Europe and the national courts of Member States of the European Union (EU) cooperate with the CJEU by referring cases to the regional court.

Viewed against the success story of the procedure in Europe and the consequent legal impact that the CJEU has had on European integration, the ECOWAS experience calls for honest and critical evaluation. The glaring absence of cooperation between national courts and the ECOWAS Court has to be interrogated to enable us to understand why national courts in West Africa would not play judicial games with the ECOWAS Court in ways similar to how their counterparts in Europe cooperate with the CJEU. Accordingly, applying wisdom borrowed from scholarly analysis of the referral behaviour of national courts in Europe, this article investigates possible explanations for the refusal or failure of national courts to take advantage of the Preliminary Reference Procedure to contribute to ECOWAS integration. Instead of asking and answering why national courts of ECOWAS member states do not play – a question that demands extensive field research involving 15 ECOWAS Member States, this article employs a comparative desk approach to ask why national courts would not or may not play.

To achieve my purpose, I have divided the rest of the article into five parts. In the next section, I present a general understanding of the nature and purpose of the preliminary reference procedure as captured in the vast literature on the subject. Then, in section III, from an outsider's perspective, I trace the evolution of the reference procedure in the EU legal framework. In section IV, I consider the motives and justifications advanced for defiance and cooperation with the preliminary reference procedure in Europe. It is in section V that I undertake an analysis of the ECOWAS (in)experience in the preliminary reference procedure, highlighting what I consider to be obstacles to the success of the procedure in the ECOWAS framework. I conclude in section VI with a brief restatement of my main argument.

To appreciate the challenges associated with the operationalisation of the preliminary reference procedure in the ECOWAS Community framework, it is imperative to have a basic understanding of the nature of the procedure and how it works in practice. Proceeding on the assumption that, in the absence of referrals,⁶ no such practical understanding currently exists at a general level in ECOWAS, this section is devoted to a non-exhaustive examination of the nature and purpose of the procedure.

The character of international law provides an excellent starting point for understanding the nature of the preliminary reference procedure. Despite the more intrusive structure of regional economic integration, at a basic level, most integration communities operate similar to international law generally in the sense that community laws are not directly enforced (within national legal spaces) by organs of such communities even in cases where those laws are considered to be self-enforcing. The bulk of community law is generally implemented and enforced within national spaces by national agencies and authorities. The preliminary reference procedure advances or builds on this enforcement or implementation element. Maher emphasises this enforcement character in the observation that ‘the involvement of the national courts in the enforcement of Community law is crucial in increasing pressure on member states to fulfil their Community obligations, especially in relation to directives.’⁷ In other words, outputs of community legal processes find expression within national legal spaces when invoked by individual citizens or applied by national authorities or agencies. Judicial enforcement in the event of default or interpretation in the event of interpretational conflict then falls on national courts acting as agents of the transnational community.

However, as one commentator has pointed out, the procedure does not thereby become an independent enforcement procedure for community law under such community framework.⁸ Where integration or community law reposes enforcement responsibilities and powers on specific organs or institutions of that integration community, the procedure does not alter that regime by conferring enforcement responsibilities or powers on individuals or national authorities. Treaty-recognised entities remain the only entities empowered to enforce obligations under such community law while the procedure allows for the invocation of community law within national legal spaces for the benefit of community citizens and residents. The procedure is for protective rather than punitive purposes. It also does not necessarily create an independent, previously non-existent cause of action before national courts on infringement of community law.

Responsibility for enforcement of community law through an infringement procedure generally lies with Member States and the secretariats or commissions of integration organisations.⁹ Rather, the preliminary reference procedure provides a secondary implementation opportunity through regular civil (and occasionally, criminal) action before national courts. Litigants seeking to claim rights conferred by community law or resist obligations imposed by community law in their regular lives are able to invoke community law or aspects of community law, and litigants may raise questions involving community law before national courts in national legal systems. This means that conflicts arising from the implementation of community law usually (should) occur at the national level, either vertically as between implementing authorities and the general public or in horizontal relationships between members of the general public who come under the operation of the law.¹⁰ Ideally, such conflicts are resolved by national courts in all the respective states where implementation takes place, creating a risk of fragmentation and conflicting interpretation and application of community law.

Thus, the preliminary reference procedure is also a coordination tool available to the judicial organ of an integration community to ensure coherence of community law. In other words, the procedure is not a mechanism that empowers the community judicial organ to ‘force integration by...