The role of the Member States Courts in the Jurisdictional System of the European Union: the Portuguese case

• Author: Nuno Piçarra - Francisco Pereira Coutinho
• Position: Law Faculty of the Universidade Nova of Lisbon.
• Pages: 166-183

166 VI ANUÁRIO BRASILEIRO DE DIREITO INTERNACIONAL | V. 2

The Role of the Member States Courts in the Jurisdictional System

of the European Union: The Portuguese Case

nunopiçarraandFranCisCopereiraCoutinho

1

Resumo

Este artigo lida com a questão da assimilação pelas Cortes portuguesas da ordem

jurídica da União Européia desde a inclusão de Portugal em 1986 . Revisa-se:

(i) os “deveres europeus” confiados às cortes dos Estados Membros, como

explicitado pela Corte de Justiça da União Européia no contexto do procedimento

de decisões preliminares, e

(ii) o modo pelo qual as cortes portuguesas implementaram esses deveres ao longo

das últimas duas décadas.

Abstract

This article deals with the Portuguese courts’ assimilation of the European Union (EU)

legal order since the accession of Portugal in 1986. It will review

(i) the “European duties” entrusted to the Member States’ courts, as made

explicit by the Court of Justice of the European Union (ECJ) in the

framework of the preliminary ruling procedure, and

(ii) the way Portuguese courts have implemented such duties during the last

two decades.

Summary

I. Introduction.

II. The essential features of the EU jurisdictional system.

1. National courts as EU common courts.

2. The Court of Justice of the European Union as guarantor of the uniform

interpretation of EU law by national courts.

3. Relations between the Court of Justice of the European Union and the

national courts in the preliminary ruling procedure.

3.1. The nature of the preliminary ruling procedure.

3.2. Cases of mandatory reference for a preliminary ruling.

III. National courts duties as EU Courts.

1 Law Faculty of the Universidade Nova of Lisbon.

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The Role of the Member States Courts in the Jurisdictional System of the European

Union: The Portuguese Case

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1. The duty to enforce EU law.

2. Corollaries of the duty to enforce EU Law.

2.1. The principle of consistent interpretation.

2.2. The principle of Member States’ responsibility for the violation

of EU law.

2.3. The principle of procedural autonomy and its limits.

IV. A weak point of the EU jurisdictional system: the precarious nature of the

guarantees for compliance with Article 267(3) of the TFEU.

V. Portuguese courts’ reactions to the “Europeanizing impulses”.

1. Portuguese courts and Article 267 of the TFEU.

1.1. What the figures reveal.

1.2. The authors of the Portuguese preliminary references.

1.3. Portuguese preliminary reference subjects.

1.4. The ECJ’s reactions to Portuguese preliminary references.

1.5. Portuguese courts and the duty to refer.

2. The Portuguese peculiarity.

VI. Conclusions.

I. Introduction

The treaties, which during the 1950s created the foundations of what is today the

EU2, granted — albeit discretely — an important role to the courts of the Member

States; that of applying EU law as common courts.

EU law is directed towards individuals and not onl y towards Member States and,

moreover, has a binding force superior to that of international law. The Europeanization

of national courts has thus been essentially a consequence of their duty to apply also to

private parties “a common European law”, primarily of an economic nature.3

Each of the three treaties originally created a single central court — the Court

of Justice of the European Union (ECJ) — conceived as a special court endowed

with the competences that national courts could not exercise properly. Amongst those

competences is the guarantee of the uniform interpretation and application of EU law

throughout the Member States.

2 The European Coal and Steel Treaty (ECS), which was signed in Paris on 18 April 1951, entered into force on 24 July 1952 and was

abolished on 23 July 2002. The European Economic Community and the European Atomic Energy (EAE) Treaties were signed in Rome on

25 March 1957, and came into force on 1 January 1958. In contrast to the ECS, they contain a clause that expressly states their permanent

application. In 1992, with the entry into force of the Treaty on the European Union (TUE), the European Economic Community Treaty

became the European Community Treaty. The Lisbon Treaty, which has been in force since 1 December 2009, states in Article 1(3) in

fine that the “Union shall replace and succeed the European Community”. From that date, the Treaty of Rome became the Treaty on the

Functioning of the European Union (TFEU). This text will refer only to the Union. All the articles from the TEU and the TFEU will be

quoted with their new numeration, except when otherwise results from the text.

3 The EU treaties also attribute to the public administrations of the Member States the role of “common enforcers” of EU law. Litigation

between Member States and individuals concerning the interpretation and the enforcement of EU law must be settled by the national courts.

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