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Dr. Rudolf Thienel, Vice-President of the Administrative Court of Austria
"Organization and function of the European Court of Justice - the procedure concerning preliminary rulings"

Speaker Dr. Rudolf Thienel, Vice-President of the Administrative Court of Austria
Moderator Professor Takao SUAMI (Faculty of Law, Waseda Univ.),
Member of the steering committee of the EUIJ Waseda
Date 28 May 2009
Time 10:40 - 12:10
Venue Multi-purpose Lecture Hall, Bldg.26, Waseda Univ.
Language English (Simultaneous Translation)

Thienel.jpg Moderator, Professor Suami introduced the event, mentioning that without its own legal order, "the integrated EU today" could not have been shaped in such a sophisticated way. He expected a lecture from a lawyer's viewpoint. Professor Fukuda, the Chairperson of the EUIJ Waseda, made opening remarks, recognizing the honor of welcoming an erudite person to Waseda and informing students that they fortunate to enjoy such an opportunity. He added that the lecture would also be of interest to political scientists.

Professor Thienel started the lecture by explaining the basic characteristics of the European Union. The structure of the EU consists of three pillars, and only the first pillar has a specific legal system. Community law possesses its own features such as direct validity, direct effect and supremacy, which differ from classical international law. Primary community law is composed of treaties and unwritten rules including general principles of law which have been developed by the European Court of Justice. Secondary community law is comprised of regulations, directives, decisions, unilateral acts and international agreements. As the EU does not have its own administrative authority, the role of administration is owed to member states

Article 10 of the EC Treaty prescribes that even when Community rules do not have direct effect, member states shall take all appropriate measures to enable citizens to invoke such rules in domestic courts. Member states "shall abstain from any measures which could jeopardize the attainment of the objectives of" the Treaty.

The jurisdiction of the EC Court extends to the EC Treaty as described in Article 220, unwritten rules and secondary law, but is limited only to those matters characterized as community law. The Court never has jurisdiction over the national laws of member states. For the better functioning of the "effet utile" principle, the Court, through its precedents, has developed many rules such as direct effect, the supremacy of community law, fundamental rights as part of community law, state liability for EC law and obligations of the EC Court, and so forth.

Preliminary ruling, which is one of the legal procedures of the EC Court, was the main topic of the lecture. A preliminary ruling allows member states to refer to the EC Court when the question of interpretation of EC law arises in domestic courts. The EC Treaty thus creates a system of close co-operation between national courts and the EC Court, enabling the uniform interpretation of EC law. Although the obligation to refer a case to the EC Court occurs when the domestic court is the last instance, if the same question has already been resolved once, such an obligation does not occur. It is only in rare cases that a decision by a domestic court not to refer a question to the EC Court amounts to a violation of community law. These liability questions are sensitive as they involve intrusion in matters that are thought to be within the sovereign jurisdiction of a state. Retrospective effect applies to such cases.

Finally, statistical issues were discussed. Austria has referred 333 cases to the Court since 1995, and this number is quite high. In 2008, 288 new requests for preliminary rulings were made, out of a total of 583 newly-initiated procedures, demonstrating the significance of preliminary rulings within the system as a whole. The average time taken to reach a preliminary ruling in 2008 was 16.8 months. The total procedure will last significantly longer if all stages of consideration under domestic jurisdiction are included.

The WSE provides companies with not only capital but also many of these instruments. A lot of these projects are related to intellectual capital. If the WSE wants to attract new capital or new customers, it has to be innovative because everything in society is based on knowledge and innovation, human capital and education. Invisible assets can be difficult to identify, but everything must be measured in order to be evaluated, as investments in intangibles are becoming increasingly important.

ThienelQA.jpgIn the question and answer session, some interesting points were raised. Is it possible to refer a case to the EC Court if it has already been the subject of an appeal from a judicial panel to the Court of First Instance? What is the effect of preliminary rulings on domestic judgments which have the effect of res judicata?. Is there any open or closed system for the unification of interpretation between domestic courts and the EC Court? How has the EC Court managed to accord its teleological interpretations with the principles prescribed in the Vienna Law of Treaties, Article 31 and 32? What is the relationship between Austria's high level of positive referral and its culture or education system?

The lecture could be said to be directed at specialists in the area. The audience contained some leading researchers, and the discussion in the question and answer session was technical and of a high quality.