Supplementary memorandum from the Law
Society of England and Wales
Thank you once again for the opportunity to
address the Committee on the justice, freedom and security aspects
of the Reform Treaty (Treaty of Lisbon). The Law Society would
like to take the opportunity to submit some follow up comments
in relation to the extension of jurisdiction of the European Court
of Justice (ECJ) in this area.
In relation to matters currently falling under
Title IV TEC for example, immigration, asylum, judicial co-operation
in civil matters, the Law Society supports the provisions under
the Treaty of Lisbon relating to the extension of the jurisdiction
of the ECJ as regards the preliminary reference procedure. Article
68 TEC only provided for the courts of last instance "against
whose decisions there is no judicial remedy under national law"
to raise matters of interpretation of Title IV or on the validity
or interpretation of acts of the institutions.
The Law Society has previously considered that
this constitutes a severe restriction on the right of a national
court to obtain an authoritative interpretation of an issue of
European Community law. Whilst Regulations are to be applied with
binding force in all Member States and it is reasonable to expect
each national court to apply a Regulation to the best of its ability,
the restricted access to the ECJ is capable of leading to variances
of interpretation between different national courts. Thereby leading
to gaps between interpretation by Member State courts and the
ECJ. Moreover it appears to counteract the argument that European
Community law should be a part of mainstream legal life rather
than a specific and expert area of law.
This is indeed a helpful development. Whilst
the workload of the court may expand to a limited extent we do
not expect problems due to an increased workload, particularly
due to the increase in the number of Advocate Generals assigned
to the Court.
As regards the area of police and judicial co-operation,
traditionally third pillar matters, the Law Society supports the
provision under the Treaty of Lisbon to allow for full jurisdiction
of the European Court of Justice in this area. Thus ending the
procedure whereby Member States elect the Court's jurisdiction
under article 35 TEU. Moreover subjecting this area of European
law to the full jurisdiction of the ECJ will allow for infringement
proceedings and greater oversight in terms of implementation of
measures. This is an improvement as to date this lack of consistency
of interpretation and limited enforcement power has undermined
many of the objectives in this area.
21 January 2008
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