The Appeal of an Article 177 EEC Referral

Abstract

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 themselves.3 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.