Caribbean Court of Justice

However, without a doubt, the potentially greatest contributors to the growth and development of the new and still emerging legal order of the Caribbean Community will be the European Court of Justice, and the Court of First Instance of the European Communities. The newer Court of the European Free Trade Area will also be of relevance, given it is interpreting and applying rules between the very strict European Union and the more flexible European Free Trade Area, particularly as these have been expressed in the European Economic Area Agreement.

AAll ideas on the future of the Community=s judicial system must

take into account three fundamental requirements:

-the need to secure the unity of Community law by means of

a supreme court;

-the need to ensure that the judicial system is transparent,

comprehensible and accessible to the public;

-the need to dispense justice without unacceptable delay.@[1]

These requirements are as fundamental for CARICOM as for the judicial system of the European Union .Indeed, it is arguably the case that they may be of greater, more primordial importance to the former, given that it is just about to begin the journey of comprehensive, coherent and cohesive legal ordering after floundering about indecisively for over a quarter century of existence.

Within the context of the CCJ=s Original Jurisdiction, the ensuing discussion will focus on the approaches the Court may wish to take in the development of the Advisory Opinion sub-head and the Procedure for Referrals from National Tribunals. The discussion rests on the posit that:

AThe...[advisory opinion role and]...the preliminary ruling system ...[will be]..the veritable corner stone of the operation of the...[Caribbean Single Market and Economy[...,since...[the Court will play]...a fundamental role in ensuring that the law established by the Treaty retains its Community character with a view to guaranteeing that the law has the same effect in all circumstances in all the Member States...Any weakening, even if only potential, of the uniform application and interpretation of Community law throughout the...

[Community]...will be liable to give rise to distortions of competition and discrimination between economic operators, thus jeopardizing equality of opportunity between those operators and consequently the proper functioning of the internal market.[2]

One of the essential tasks of the new Court will be to A...ensure just such a uniform interpretation, and it...[will discharge]...that duty by answering the questions put to it by the national courts and tribunals.@[3]

As will be seen, the European Union instruments giving the ECJ jurisdiction, has an Advisory Opinion procedure, but one which is not used for present purposes. In the context of the CCJ such a procedure exists and will be the avenue through which Member States or Community Organs may ask questions of the Court with a view to arriving at precisely the same objective of a uniform interpretation [and application] of CARICOM law.

The discussion will be structured on the basis of comparative analysis of the empowering provisions given to the CCJ as well as the ECJ, EFTA Court, the ICJ and ITLOS. Prior to setting out these provisions, an analysis of the jurisprudential bases for the new Treaty of Chaguaramas regime will be presented. The contemporary practice and case law of the ECJ will then be used in the attempt to find markers that our judicial institution may find it possible and desirable to rely on. Usage will also be made of analytical materials prepared by the European Union dealing with reform of their judicial system and .A documents published as guidelines for national tribunals wishing to use the referral procedure is appended, along with a survey of the application of Community law .

THE JURISPRUDENTIAL BASES FOR THE REVISED DISPUTE SETTLEMENT REGIME .

John Jackson [in John H.Jackson, et al Eds., Legal Problems of International Economic Relations, Third Edition, West Publishing Co.,St.Paul, Minn., 1995, pp.327-8,] makes the following observation which is very relevant for current purposes:

A fundamental question that arises in constructing and evaluating dispute settlement systems at the international level is whether the system should be primarily designed to adjudicate disputes or to mediate them. If mediation is the goal then a dispute settlement system must emphasize methods designed to encourage the contending parties to negotiate a solution to their dispute. If adjudication is the goal, then a system must be able to apply the relevant rules consistently and ensure that decisions produced by the system are implemented.”

The commentary of Parts One to Four of the Protocol demonstrate that the Caribbean regional integration movement does not accept that it has to be either mediation or adjudication. The experiences of the past 26 years has shown, through dismal failure of the former to weld together a tightly-knitted process, that optimal utilization of adjudication can only assist the process. Therefore, a key element of the policy can be couched in the following terms:

The traffic will have to bear a little more in the interest of the development, economic and social progress of the Member States of CARICOM and their nationals. The Gentleman’s agreement mode has been tried and tested and found severely wanting. The system now desperately needs an injection of the rule-based approach to which CARICOM is subjected, in any event, at the multilateral level and will be subjected to, shortly, at the hemispheric level as well.

Jackson posits a list of policies which underlie the way that institutions and procedures have been shaped in the United States in terms of the application of dispute settlement involving international economic and trade interactions. These procedures stated, standing on their own represent the kind of ideals to which the entire single Market and Economy regime aspires, and within that, as a particular, the Dispute Settlement System.

C The procedure should maximize the opportunity of government officials to receive all relevant information, arguments, and perspectives. Thus, a procedure that allows all interested parties to present evidence and arguments would enhance the realization of this goal.

C The procedure should prevent corruption and ethical mala fides, even when the latter falls short of corruption and illegal activities. Another way to express this is that an important policy goal of the procedure is to prevent back room political deals that favour special or particular interests while defeating the broader policy objectives of the [US] government.

C The procedure should enhance the perception of all parties who will be affected by a decision that they have had their chance to present information and arguments...they have had their “day in court”

C The procedure should be perceived by the citizens at large as fair and tending to maximize the chances for a correct decision. A sense of fairness will include a desire that even weaker interests..be treated fairly..

C The procedure should be reasonably efficient, that is it should allow reasonably quick government decision and minimize the cost both to government and to private parties of arriving at those decisions.

C the procedure should maximize the likelihood that a decision will be made on a general...international basis, not catering particularly to special interests. In other words, the procedure should be designed so that government officials can realistically be assisted in ‘fending off” special interests that conflict with the general good of the...[Community.]

C The procedure must fit into the overall constitutional system[s] of the societ[ies] concerned and be consistent with the policy goals underpinning the constitutional system[s]

C Predictability and stability of decisions are important values. Predictability of decisions, whether based on precedent, statutory formulas [sic], or something else, enable private parties and their counselors (lawyers, economists,) and politicians to calculate generally the potential or lack of potential for a favourable decision under each of a variety of different regulatory systems.

To the extent that the framers of the Treaty of Chaguaramas and the State Parties thereto, have agreed to establish a structure of unlimited duration, with discrete powers, rights and duties, they decided to set up a legal order separate and distinct from the existing sovereignties. They volitionally ceded aspects of existing sovereignty in a discrete and limited number of areas. While their decision in respect of revising the Treaty conforms to the rule-based approach postulated by Jackson, the process is not complete until we have followed through and define the full external contours of the new legal order; as well as have they decided on certain critical internal facets.

The premier regional integration arrangement, the European Union has had to face these problems. They however, from the outset had in place certain institutions, which would ensure there would be no faltering. The European Court of Justice stated inter alia in Costa v. ENEL, 6/64 [1964] ECR 585:

“By contrast with ordinary international treaties, the EEC Treaty has created its own legal system which, on the entry into force of the treaty, became an integral part of the legal systems of the Member States and which their courts are bound to apply. By creating a Community of unlimited duration, having¼powers stemming from a limitation of sovereignty, or a transfer of powers from States to the , the community Member States have limited their own sovereign rights, albeit within limited fields, and have thus created a body of laws which binds both their nationals and themselves.” [Emphasis added]

Supranationality has not been a feature of the Caribbean Community, but the fact is there are treaty rules, which have purported to bind CARICOM nationals. A prime example of this is Article 14(6) of the Annex which treats with situations where there is an interruption or inadequacy of raw materials and the manufacturer wishes to obtain extra-regional supplies, there is a requirement that “¼he shall so inform the Competent Authority” of his country. This is a perfect legal duty, which requires nothing more to give it legal effect in a strict jurisprudential sense. This rule has been retained in Protocol IV, Article 17(3). The point is that while sovereignty is a critical facet of political independence, it behoves small States such as those in the Caribbean to pool their sovereignty. This is even more necessary as powerful extra-regional forces increasingly attempt to erode that sovereignty.

In fact it is ironic that while the wider regional entity has not adopted a proper dispute resolution system with outcomes having the force of decisions, a sub-group, the Organization of Eastern Caribbean States in their constituent instrument have in place a conciliatory procedure which is mandatory. Under the Agreement Establishing the OECS, disputes concerning the interpretation or application of the Agreement must be settled by “direct agreement.” Where settlement is not possible a Conciliation Committee process is triggered, the results of which cannot be appealed and are binding on Members. It is very critical [as has been recognized by the Legal Affairs Committee,] that the Member States of the Caribbean Community understand and accept the place which the rules of public international law and international trade law occupy in their integration efforts.

To the extent that the thrust towards the Single Market and Economy incorporates the creation of executive, judicial and administrative structures, implications yet not properly understood by some are involved. The changes will pose challenges. They must not be seen as being frightening.

These changes will give flesh to the ‘skeletal’ Body of Community Law, which has hitherto existed. We may here list some of the ‘candidates’ around which the law will develop:

(i) Sources of Caribbean Community Law

· The Treaty of Chaguaramas, its Annex and Protocols

· Rules and principles of General International Law – whether codified in international treaties and conventions, or customary.

· Rules and principles of International Trade and Economic Law, particularly as evidenced in the GATT, the WTO and where applicable, the practice of other Regional Economic Groupings

· International Treaties validly concluded by the Community

* Opinions of the Legal Affairs Committee

· Instruments, Regulations and Procedures validly adopted by Community Organs, Subsidiary Bodies and Institutions

· Decisions of the Organs, Subsidiary Bodies and Institutions of the Community going back as far as CARIFTA

· State Practice [of Members,] particularly as evidenced in bilateral trade and economic agreements between themselves and with third States or groups of third States

· General Constitutional and legal principles, and Fundamental Rights upon which the municipal legal order of the Member States are built

· Determinations by the Caribbean Court of Justice and other Dispute Resolution Bodies charged with making final determination of issues, for example the Competition Commission and Arbitration Panels

* Legislative, regulatory and administrative decisions of Member States having legal effect, but which fall within the sphere of operation of the Treaty;that is, which purport to give effect to Treaty dispositions.

· Judicial decisions of municipal tribunals impacting on provisions in the Treaty, or on decisions of Organizations, Subsidiary Bodies and Institutions of the Community.

These sources, together with an enforcement mechanism are

necessary to:

(1) protect the organization, its agents and persons entitled through them;

(2) give effect to non-political interpretation and application of the Treaty and other Community decisions;

(3) make legal determinations concerning breaches of the outputs of the decision-making structures;

(4) examine the vires of acts of the Community Institutions;

(5) the settlement of all germane disputes;

(6) establishing the legal parameters of the relationship between the Community (and its Institutions) and Member States, as well as the relationship between both of these and natural and legal persons (Community nationals);

(7) generally, to control the acts of the organization and the legal limits to its power vis-á-vis the sovereignty of its members.

In resolving disputes within the Community, all of the mechanisms involved, whether it be the Conference, the COTED, Arbitration Panels, Conciliation Commissions, the Competition Commission or the Caribbean Court of Justice, two critical factors will have to be borne in mind. The first is the primacy of Community Law and the second turns on the interface between that law and the General Constitutional and legal principles and Fundamental Rights upon which the municipal legal order of the Member States are built. This is natural given the fact that outside of flagrant breaches of treaty or other obligations, many disputes will turn on the manner in which, or the procedures by which Members States give effect to their obligations. This will operate at three levels of interaction:

(i) Member States inter se

(ii) Member States –Community Organs and Bodies

(iii) Member States—natural and legal persons

At the level of disputes between Community Organs and Bodies, and disputes between these entities and natural and legal persons; the issues may be no less complex. However, they are susceptible to the application of the more generalized sources, although it is arguable that wherever disputes involving natural and legal persons occur, internal legal and constitutional principles and issues of fundamental rights are always appropriately raised. An analysis of how these matters were treated at an earlier stage of the development of the European Community may be of value to present efforts. The European Court of Justice’s judgement in several cases is perhaps the easiest way to tackle that analysis.

The Court has always taken the view that fundamental rights constitute an integral part of the general principles which it is bound to uphold, even though it is possible to separate them.[See 4/73 Nold v. Commission [1974] ECR 491.

The juridical basis for the adoption of these principles derives from the long-standing practice of international tribunals to draw upon, as a source of law, general principles. It was not supposed that the new legal order of the European Communities wished to exclude this inherent Interpretational tool. The Treaty of Rome implies the contrary, since Article 164 asserts that the Court shall, in interpreting the Treaty, ensure that ‘the law is observed.’ In addition, Article 173 mentions as a ground for invalidating acts of the Community ‘any rule of law.’ Then, Article 215 which treats with the non-contractual liability of the Community sets up as a criterion, the determination of such liability in accordance with ‘the general principles common to the laws of Member States.’ It is concluded that given the essentially similar evolution of the legal orders in the Western European State System, a clear presumption therefore obtains that the general principles of municipal law is a source of Community Law.

(ii) THE PRINCIPLES ELABORATED

Proportionality

In the words of the ECJ, this principle means that ‘the individual should not have his freedom of action limited beyond the degree necessary for the public interest. [Innternationale Handelsgeselschaft, case 11/70 [1970] ECR 1125 at 1127.] Thus, a provision of a Regulation requiring forfeiture of a security for any failure to perform a contract, irrespective of the gravity of the breach, was struck down. [Case 240/78 Atalanta [1979] ECR 2137.] The tribunal held that the penalty must be ‘commensurate’ with the degree of failure to implement the obligations.

Similarly, acts of Member states designed to implement treaty provisions, or secondary legislation, can also be struck down. This was particularly the case with derogation on provisions dealing with quantitative restrictions or their equivalent, Article 36. The ECJ made it clear on a number of occasions that under any one of the heads, the measure must be proportionate to the mischief being sought to be corrected, and also, that where other measures can achieve the same results, derogation will not be allowed. The same approach was adopted in respect of Article 48(3) derogation concerning the free movement of workers. Thus in Rutili, 36/75 [1975] ECR1219 and Boucherau, 30/77 [1977] ECR 1999, the Court insisted that the fundamental rule in Article 48 can only be avoided where there is a ‘genuine and sufficiently serious threat to the requirements of public policy.’

Legal Certainty and Legitimate Expectations

This principle requires that subjects of the legal system should not be placed in a position where they are uncertain as to their rights or their obligations. In Goudrand Feres 169/80, [1981] ECR 1931, it was decided that ambiguity or lack of clarity of measures imposing charges was to be decided in favour of the taxpayer. On the other hand, it has also been held that the principle applied in favour of Member States as well, where the latter had incurred expenditure in legitimate anticipation of financial aid from the Community. This has implications in the implementation of Protocol VII. [Germany v.Commission 44/81 [1982] ECR 1885. This principle also operates to preclude legislative and administrative measures taking effect without publication.

Note should be taken however, of the judgement in Decker, [99/78 [1979] ECR 101, where the position was taken that a measure can have retroactive application in the exceptional circumstances of the objective to be achieved so requires and the legitimate expectations of the parties concerned are observed. Upon the special pleading of certain countries, the Court in Defrenne v.Sabena, 43/75, [1976] ECR 455 slightly reversed itself in holding that its finding that Article 119 of the Treaty relating to non-discrimination had direct effect, could not be applied retroactively. The case was one in which any other result could have led to catastrophic consequences for some Member States’ economies.

Equality

This principle obviously requires that differential treatment in comparable

situations be based on objective factors. This had been held to be one of the

fundamental principles of the Community’s Civil Service Establishment. The

equality principle also has implications for gender and other forms of discrimination

and provisions impacting on treatment of workers under Article 8, as discussed supra.

Fundamental Rights

In the first place the European Court of Justice has made reference to the European Convention on Human Rights. [See for example Stauder, 29/69, [1969] ECR 419. In the Internationale Handelsgesellschaft case cited above the tribunal rejected the contention that a Community act could be impugned for inconsistency with even the most fundamental tenet of national constitutional law. But it went on to state:

“However, an examination should be made as to whether or not any analogous guarantee inherent in Community law has been disregarded. In fact, respect for fundamental rights form an integral part of the general principles of law protected by the Court of Justice. The protection of such rights, whilst inspired by the constitutional traditions common to Member States, must be ensured within the framework of the structure and objectives of the Community.”

Thus while Stauder confirmed the existence of these rights, the latter judgement identified their primary source as the municipal constitutional system. One must note however that the ECJ like the European Court of Human Rights tends towards what the latter termed an ‘autonomous concept.’ Although the source may be national law, generalized application –in the Community context –requires that the judicial authority ensure uniformity.

The Court has also spoken approvingly of other principles of law such as due process and the right to a proper defense, and in a major decision, the confidentiality of communication between lawyer and client was upheld. [Case 155/79 A.M.& S., [1982] ECR 1575.

(iii)THE SUPREMACY OF COMMUNITY LAW

The English scholar, Lawrence Collins, [European Community Law in the United Kingdom, Butterworths, London, 1984, at pp. 11-12] makes the following interesting summary of the bases of the supremacy of Community Law.

His nine-point summary is derived from the case law of the Court:

1. Community law confers rights on individuals which national courts are bound to protect.

2. Municipal legislation cannot prevail over Community law, no matter which

came first in time

3. The efficacy of Community law cannot vary from one Member State to another.

4. Member States cannot take or maintain in force, measures that are liable to impair the useful effect of the Treaty.

5. Member States cannot give authoritative rulings [by legislation or otherwise] on the interpretation of Community Regulations.

6. Community Law cannot be tested in municipal courts for compliance with the constitutions of Member states.

7. Member States cannot remove from ordinary courts, the power to apply Community Law.

8. Where the Court declares legislation of a Member State to be incompatible with Community Law, the competent authorities of the State are under a duty to amend or repeal the offending act and its courts are under a duty to ensure the ECJ’s judgement is complied with.

9. Member States cannot excuse their non-performance of treaty obligations by reliance on their domestic constitutions.

Many elements of this list are rules or precepts, which are already applicable rules of general international law. Here, they have been co-mingled with the jurisprudence of the Court. The present writer would add the principle of Estoppel or Preclusion. The Court has held that Member States cannot plead their non-compliance with Community acts as defense. [One cannot rely on one’s illegal acts or omission.]

Three cases suffice to demonstrate the Court’s view of this matter of the supremacy of Community Law.

Firstly, there is the Costa v. ENEL judgment which was cited above. The second case is 106/77 Simmenthal, [l978] ECR 629 at pp. 6430-4 where the Court went further than in Costa:

“Furthermore, in accordance with the principles of precedence of Community Law, the relationship between the provisions of the treaty and directly applicable measures of the institutions on the one hand and the national law of Member States on the other is such that those provisions and measures not only by their entry into force render automatically inapplicable any conflicting provision so current national law but – in so far as they are an integral part of, and takes precedence in, the legal order applicable in the territory of each of the Member States – also preclude the valid adoption of new national legislative measures to the extent that they would be incompatible with Community provisions…It follows…that every national court must…apply Community law in its entirety and protect rights which the latter confers on individuals and must accordingly set aside any provision of national law which conflict with it, whether prior or subsequent to the Community rule.” [Emphasis added.]

Finally, in the case of Foto-Frost v. Hauptzollampt [case 314/85 (l988) E.L. Rev., 125 it was held that national courts

“might examine the validity of a Community act and conclude that it was valid; however, the coherence of the Community legal order required that the Court of Justice of the …Communities alone could declare such an act as void.” [Emphasis added.]

The case concerned a reference from the Finance Court of Hamburg as to whether it could annul a Community act. The ‘guardian’ of the Community’s legal order noted that Article 177 had given municipal courts the power to refer questions on the validity and interpretation of Community acts, but it “had not dealt with the question of the power of such courts to themselves hold that acts of Community institutions were invalid.” The ‘main purpose’ of this reference procedure was to ensure that Community law was applied uniformly to national courts. This was of particular importance where acts of the Community were concerned. Logically:

“Divergence between the courts of Member States with regard to the validity of Community acts might compromise the very unity of the Community legal order and thereby undermine the fundamental Requirement of legal certainty.”[Emphasis added]

The position is reinforced by the “exclusive grant of jurisdiction’ to the Court, pursuant to Article 173 to annul such acts, and thus concomitantly,

“…the power to declare the same acts invalid, if that question were raised before a national court, should be reserved to the Court.”

The following points were also made in the judgment:

- the ECJ was best placed to the rule upon the validity of such acts, pursuant to Article 20 of the Protocol on the Statute of the Court, Community institutions whose acts were being impugned, and locus standi, and thus could defend their actions and

- even more critically, the Court could pursuant to the same Article

“require Community institutions not being parties to the case to supply all information which the Court considered necessary for the proceedings.”

Legal practitioners both in the private Bar and the Chamber of the Attorneys-General of CARICOM Member States are encouraged to view the Dispute Settlement Procedures in the Revised Treaty of Chaguaramas within the perspective presented here. To do otherwise would be an attempt to disjunctively apply a system designed to bring coherence and legal completeness to the regional integration at a time when no less is necessary.

We may now list the Referral and Advisory opinion in several instruments.

PROVISIONS OF CONSTITUENT INSTRUMENTS DEALING WITH THE REFERRAL AND/OR ADVISORY OPINION PROCEDURES.

(i) Referrals

The Agreement Establishing The Caribbean Court of Justice deals in Part II with the Original Jurisdiction. There is a provision on the Jurisdiction of the Court in Contentious Proceedings. Article IX(a) (c) states that subject to the Treaty, the institution shall have exclusive jurisdiction to deliver judgment on

“referrals from national courts or tribunals of Contracting Parties to

this Agreement.”

The requirement that this be ‘subject to the Treaty’ is so stated because it is precisely that instrument which juridically empowers the Court to exercise this jurisdiction. The corresponding provision is Article XXIX of Protocol IX on Dispute Settlement.

Closely related to this aspect of the jurisdiction is Article IX(f) which makes it clear that the jurisdiction is to the exclusion of any and all other tribunals, as well as being compulsory:

“1. Contracting Parties agree that they recognize as compulsory, ipso

facto and without special agreement, the original jurisdiction of the

Court provided for in Article IX(a).

2. In the event of a dispute as to whether the Court has jurisdiction,

the matter shall be determined by a decision of the Court.”

The corresponding Protocol IX provision is Article XXXV.

The entitlement is further elaborated on in Article IX(c) [Protocol IX Article XXXII] which states that

“Where a national court or tribunal of a Contracting Party is seised of

an issue whose resolution involves a question concerning the

interpretation or application of the Treaty, the court or tribunal

concerned shall, if it considers that a decision on the question is

necessary to enable it to deliver judgment, refer the question to the Court

for determination before delivering judgement.”

The first point to be made is that like the constituent instrument of the European Union, the requirement is stipulated that any national court may refert. On the other hand, the provision goes on to state ‘or a tribunal.’ It will therefore be feasible for quasi-judicial tribunals to refer questions to the Court while judicial tribunals.

It is quite understandable that at the outset, while there will be many issues involving the determination of the rights and obligations of entities or persons under the revised Treaty of Chaguaramas, some effort will still need to be made to insulate the new judicial institution from questions which may be frivolous. We may need a ‘filtration ‘ process which the European Court of Justice is presently requesting.[More on this infra.]

The comparable provision in the European Union regime is to be found at Article 234 of the Consolidated Version of the Treaty Establishing the European Community, [formerly Article 177 of the Treaty of Rome.] The Article provides that the Court of Justice “…shall have jurisdiction to give preliminary rulings concerning

(a) the interpretation of this Treaty;

(b) the validity and interpretation of acts of the institutions of the

Community and of the ECB;

(c) the interpretation of the statutes of bodies established by an act of

the Council, where those statutes so provide.”

The second paragraph which mandates that

“[w]here such a question is raised before any court or tribunal of a

Member State, that court or tribunal may, if it considers that a

decision on the question is necessary to enable it to give judgment,

request the Court of Justice to give a ruling thereon.”

In other words, and as further discussion will elaborate on, all courts or tribunals of Member States have the facility of making a request for a preliminary ruling from the ECJ. But, there is a discretion as whether this will actually occur or not. On the other hand, the final paragraph closes what could have been a major lacuna:

“Where any such question is raised in a case pending before a court

or tribunal of a Member State against whose decision there is no

judicial remedy under national law, that court or tribunal shall

bring the matter before the Court of Justice.”

Many of the senior tribunals in several Members States of the European Communities went through various contortions, before finally acknowledging the foregoing was a complete and perfect legal rule, not easily susceptible therefore to misinterpretation. In fact, the Commission found it necessary to take action before the ECJ against those Member States for failure to fulfil their obligations when national courts ignored the Treaty and failed to apply, or misapplied Community law. The situation is obviously much more settled now.

Before going on to the advisory opinion procedures, it is instructive to note that there is even an ‘export model’ of the referral procedure. The Member States of the European Union concluded an Agreement on the European Economic Area with the Member States of the European Free Trade Area. That Agreement required the establishment of a Court of Justice of the EFTA States. That however, did not prevent the Parties to the EEA Agreement from elaborating a Protocol whereby courts and tribunals of Member States of EFTA could have recourse to the European Court of Justice for decisions on the interpretation of EEA rules corresponding with EC rules. The Protocol has three articles, two of them substantive:

“1. When a question of interpretation of the provisions of the

Agreement, which are identical in substance to the provisions

of the Treaties establishing the European Communities, as

amended or supplemented, or of acts adopted in pursuance thereof,

arises in a case pending before a court or tribunal of an EFTA State,

the court or tribunal may, if it considers this necessary, ask the Court

of Justice of the European Communities to decide on such a

question.

2. An EFTA State which intends to make use of this Protocol shall

notify the Depositary and the Court of Justice of the European

Communities to what extent and according to what modalities

the Protocol will apply to its courts and tribunals.” [Protocol 34]

(ii) Advisory Opinions

(a) The International Court of Justice

If we begin at the ‘top of the totem pole’ as it were, Article 65(1) of the Statute of

the International Court of Justice provides that the institution may

“…give an advisory opinion on any legal question at the request of

whatever body may be authorized by or in accordance with the

Charter of the United Nations to make such a request.”

The second paragraph of the article stipulates that the questions upon which the opinion is being sought “…shall be laid before the Court by means of a written request containing the exact statement of the question…,and accompanied by all documents likely to throw light on the question.” The General Assembly of the United Nations, the Security Council and all the Specialized Agencies have requested advisory opinions of the Court. The juridical basis enabling this is Article 96 of the United Nations Charter which authorizes the General Assembly or the Security Council to make such requests and empowers the former body to authorize the Specialized Agencies to make requests for advisory opinion

“…on legal questions arising within the scope of their activities.”

The Rules of Procedure of the Court deals with this aspect of the tribunal’s operations and will be discussed later.

(b) The International Tribunal for the Law of the Sea

Within the ITLOS there is a Seabed Disputes Chamber with a very extensive jurisdiction in disputes between States, between the International Seabed Authority and States, and between the Authority and individual/ State- entities/ State-sponsored contractors. [See Articles 186-191, United Nations Convention on the Law of the Sea.]

The latter Article specifically provides for Advisory Opinions in the following terms;

“The Seabed Disputes Chamber shall give advisory opinions at the

request of the Assembly or the Council on legal questions arising

within the scope of their activities. Such opinions shall be given as a

matter of urgency.”

The Assembly and the Council are the two main organs of the Authority. At the time of writing, no request had yet been made to the Chamber for an opinion.

(c) Caribbean Court of Justice

Treaty Article XXX, replicated in the Agreement as Article IX(b) grants the Court it advisory opinion jurisdiction:

“1. The court shall have exclusive jurisdiction to deliver advisory

opinions concerning the interpretation or application of the Treaty.”

Unlike in the cases of the ICJ and the Seabed Disputes Chamber of the ITLOS, the CARICOM judicial authority can deliver said opinions “…only at the request of the Contracting Parties or the Community.” This will indeed provide a very powerful tool by which the Organs and Institutions of the Community can promote the growth and development of its legal order –even if Member States are reluctant to use this procedure. As in the case of the other tribunals, the Draft Rules [Original Jurisdiction] deals extensively with this procedure and will be discussed below

(d) European Free Trade Area Court of Justice [EFTA Court]

Given that this institution is less well-known than the other tribunals discussed, it is appropriate to provide a brief background. The EFTA Court was established by the Members of that regional economic grouping who are parties to the EEA Agreement of 1992 and which entered into force in 1994.The EFTA was established in 1960 by the Stockholm Convention, three years after the Treaty of Rome constituting the European Communities entered into force. The Agreement itself was between the then twelve members of the European Communities and the EFTA States Austria, Finland, Iceland, Liechtenstein, Norway, Sweden and Switzerland. Since that time Austria, Finland and Sweden joined the European Union on January 1, 1995. Switzerland and Leichtenstein were did not join the EEA Agreement, but the latter acceded on January 1, 1995.

The Court originally had five Judges, but is now comprised of three appointed by the Governments of Iceland, Leichtenstein and Norway.

The key instruments constituting this tribunal, which are important for present purposes are the EEA Agreement and the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice [ESA/Court Agreement (main part)]. Article 108(2) of the former requires that the EFTA States shall establish a Court of Justice (EFTA Court). It continues:

“The EFTA Court shall, in accordance with a separate agreement

between the EFTA States, with regard to the application of this

Agreement be competent, in particular, for:

(a) actions concerning the surveillance procedure regarding EFTA

States;

(b) appeals concerning decisions in the field of competition taken by

the EFTA Surveillance Authority;

(c) the settlement of disputes between two or more EFTA States.”

We have already noted the existence of Protocol 34 to this instrument, allowing EFTA States the facility of making references to the ECJ where the EEA Agreement rules are identical to those of the European Communities.

The ESA/Court Agreement, highlights Article 108(2) in its Preamble and then goes on :

“RECALLING the objectives of the Contracting Parties to the EEA

Agreement, in full deference to the independence of the courts, to arrive

and maintain a uniform interpretation and application of the EEA Agreement and those provisions of the Community legislation which are

substantially reproduced in that Agreement and to arrive at an equal

treatment of individuals and economic operators as regards the four

freedoms and the conditions of competition.”

After all, when the idea of this accord emerged in 1984, it was envisaged as creating a European Economic Space.

Part IV of this Agreement deals with the judicial institution. Article 27 establishes the Court and adds that it “…shall function in accordance with the provisions of this Agreement and of the EEA Agreement.” Article 32 confers jurisdiction, which shall be in actions

“…concerning the settlement of disputes between two or more EFTA

States regarding the interpretation or application of the EEA

Agreement, the Agreement on a Standing Committee of the EFTA

States or the present Agreement.”

Article 34 is the advisory jurisdiction provision:

The EFTA Court shall have jurisdiction to give advisory opinions on

the interpretation of the EEA Agreement.”

The ECJ model is followed in that

“[w]here such a question is raised before any court or tribunal in an

EFTA State, that court or tribunal may, if it considers it necessary

to enable it to give judgment, request the EFTA Court to give such

an opinion.”

There is the need however to modify the application of this procedure in respect of the EFTA States, in juxtaposition to the European Union Member, for reasons including the absence of supra-nationality in the former. In consequence, the third paragraph of this Article gives the State some discretion to limit the procedure:

An EFTA State may in its internal legislation limit the right to request

such an advisory opinion to courts and tribunals against whose

decisions there is no judicial remedy under national law.

In other words, the Member State may consider it desirable to extend to all its courts, the authority to make the request, or curtail that to the level of last instance courts and tribunals. The determining factors here would include the domestic judicial hierarchy as well as other constitutional law features.

(e) European Court of Justice

As mentioned in the introductory section, the ECJ does have an advisory opinion jurisdiction. However, it has been placed in the context of the external relations of the Communities, now the Union Article 300(6) of the Consolidated Version [old Article 228] stipulates that:

The council, the Commission or a Member State may obtain the opinion

Of the Court of Justice as to whether an agreement envisaged is compatible with the provisions of this Treaty. Where the opinion of Justice is adverse, the agreement may enter into force only in accordance with Article 48 of the Treaty on European Union.

The cited article authorizes the Commission or a Member State to propose amendments to the constituent instruments of the Union. However, it sets up a process of consultation and the convening of an Inter-Governmental Conference. The Court is placed as the final arbiter in terms of the respective areas of treaty-making competence of the institutions of the Community and individual Member States. This is borne out by Article 107(2) of the Rules of Procedure of the ECJ. It states:

The Opinion may deal not only with the question of whether the

envisaged agreement is compatible with the provisions of the

EC Treaty but also with the question whether the community or

any Community institution has the power to enter into that

agreement.

On the other hand, the Member States can be impugned under other provisions for breach of their obligations if they conclude treaties which are incompatible with the laws of the Community.

It may therefore be concluded that the EFTA model uses the advisory opinion procedure to achieve the same effect as the preliminary ruling procedure of the EU. The Caribbean Community has opted to employ both, but reserving the former procedure for use by the Community and Member States, and circumscribing the latter for utilization by Superior Courts. In terms of the structure of the advisory procedure in CARICOM it can be used for the purposes sought to be achieved in the European Union.

Protocol I empowers the Organs to negotiate and conclude international agreements on behalf of the Community. A Member State could thus request of the CCJ whether the results are compatible with the Treaty of Chaguaramas [as one Member is alleging in relation to a recently concluded Free Trade Agreement.] On the other hand, the rules in Protocol IV, Article V, which proved so difficult to negotiate, and which circumscribe the treaty-making competence of members in their bilateral relations with third States, or groups of States or other entities, can form the basis of litigation. Organs of the Community or other Member States can allege breaches of those provisions and request advisory opinions from the Court.

While the CARICOM regime is silent on the issue of an adverse opinion, it is the case that the opinion is a judicial pronouncement and the party against whom it goes would not be seen as acting in good faith, by simply ignoring the opinion. That attitude would surely then form the basis for litigation under the contentious proceedings jurisdiction of the Court.

Finally, the institutions of both the EU and EFTA have promulgated Guidelines to assist national courts or tribunals resorting to the respective procedures [appended to this paper.] These are in addition to binding provisions in the respective Rules of Procedure. The CCJ’s Draft Rules [Original Jurisdiction] addresses the advisory opinion procedure, but is silent on the referral procedure. If the Treaty [Protocol IX] and the Agreement Establishing the Caribbean Court of Justice enter into force before this can be done, then it will become a priority task of the President and the Rules Committee.

THE CONTEMPORARY APPLICATION OF THE PRELIMINARY RULING PROCEDURE BY THE EUROPEAN COURT OF JUSTICE

Where a national court is required to apply provisions of Community law in a case before it, it may stay the proceedings and ask the Court of Justice for clarification as to the validity of the Community instrument and / or the interpretation of the instrument and of the Treaties . The Court of Justice responds in the form of a judgement rather than an advisory opinion; this highlights the mandatory nature of the preliminary ruling procedure…which is not a contentious procedure but simply one stage that begins and ends in national courts.

The object of the preliminary ruling is to secure a uniform interpretation of Community law and, with it, the unity of the legal order. Alongside this latter function, the procedure is also of importance in protecting individual rights. The national courts can only assess the compatibility of national and Community law and, in the event of any incompatibility, enforce Community law –which takes precedence and is directly applicable –if the content and scope of Community provisions are clearly set out. This clarity can only be brought about by a preliminary ruling, which means that proceedings for such a ruling offer Community citizens an opportunity to challenge actions of their own Member State which are in contravention of Community law and ensure enforcement of the latter before national courts. This dual function of preliminary ruling proceedings compensates to a certain extent for the restrictions on individuals directly filing actions before the Court of Justice and is thus crucial for the legal protection of the individual.

In terms of the subject-matter, the ECJ rules on the interpretation of instruments and examines the validity of acts of the institutions. Provisions of national law may not be the subject of a preliminary ruling…This fact is often overlooked in the questions referred to the Court. Although these questions are in fact procedurally inadmissible, the Court of Justice does not simply refer them back to the national court; instead, it re-interprets the question as a request by the referring court for basic or essential criteria for interpreting the Community legal provisions concerned, thus enabling it to then give its own assessment of compatibility between national and Community law. The process by which this is done involves extracting from the documentation submitted –particularly the grounds for referral –those elements of Community law which need to be interpreted for the purpose of the underlying legal dispute.

The capacity to proceed extends to ‘all the courts of the Member States.’ This expression should be understood within the meaning of Community law and focuses not on the name but rather the function and position occupied by a judicial body within the systems of of legal protection in the Member States. On this basis ‘courts’ are understood to mean all independent institutions (i.e. not subject to instructions) empowered to settle disputes in a constitutional State under due process of law. By virtue of this definition, the constitutional courts in the Member States and dispute-settling authorities outside the State judicial system –but not private arbitration tribunals –are also entitled to refer cases. The over-riding criterion in the national court’s decision whether or not to refer will be the relevance of the point of Community law at issue for the settlement of the dispute before it. Naturally, this is a matter for the referring court to asses. The parties can only request, not require, it to refer a case. The ECJ itself considers the relevance of the point solely in terms of whether the question concerned is amenable to referral; whether a genuine legal dispute is involved; or whether a merely hypothetical issue is being raised, or whether it relates to a point of law that has already been settled. As will be seen from the discussion later, the Court still exercises great restraint in applying these criteria and declining requests. However, as will also been seen the system is being reformed and greater stringency is being urged. Of particular note is the insistence that the referral contain sufficiently clear and detailed information on the factual and legal background to the original proceedings. Where this is not provided, the Court declares itself unable to give a proper interpretation of Community law and on that basis rejects the application for a preliminary ruling as inadmissible.

The provisions cited supra also demonstrated that there is a level of obligation to refer. A national court from whose decision there is no judicial remedy in law is obliged to refer the issue of Community law pleaded. The concept of appeal encompasses all forms of legal redress by which a court ruling may be reviewed in fact and in law (appeal) or only in law (appeal on points of law). The concept does not encompass ordinary legal remedies with limited and specific effects (e.g. new proceedings, constitutional complaints.) Again as will be seen, a court obliged to refer may only avoid same if the question is of no material importance for the outcome of the case before it, or has already been answered by the Court of Justice, or the interpretation of Community law is not open to reasonable doubt. However, the obligation to refer is unconditional where the validity of a Community instrument is at issue. We have already discussed the Court’s attitude that, in this respect, it alone has the power to reject illegal provisions of Community law. The national court must therefore apply and comply with Community law until it is declared invalid by the Court of Justice.

A special arrangement applies to courts in proceedings for the granting of provisional legal protection. According to recent judgements of the Court of Justice, these courts are empowered, subject to certain conditions, to suspend enforcement of a national administrative act deriving from a Community regulation, or to issue interim orders in order to provisionally determine the arrangements of legal relations while disregarding an existing provision of Community law.

Failure to discharge the obligation to refer constitutes an infringement of the Treaty, possibly making the Member State concerned liable to infringement proceedings. In practice however, the effects of such a course of action are very limited given that the government concerned cannot comply with any order issued by the European Court of Justice because the independence of its judiciary and the principle of separation of powers means that it is unable to give instructions to national courts. On the other hand, with the recognition of the principle of Member States’ liability to comply with it has been recognized, the possibility of individuals filing for damages which may have arisen from the failure to meet the duly contracted obligation to refer, offers better prospects of success.

In terms of the effects of the preliminary ruling [issued in the form of a court order;] it is directly binding on the referring court and all other courts hearing the same case. Even more importantly, in practice it also has a very high status as a precedent for subsequent cases of like nature.

Liability Of The Member States For Infringements Of Community Law

The liability of a Member States for harm suffered by individuals as a result of infringement of Community law attributable to that State was established by the Court in early 1996 in the joined cases C-46/93 Brasserie du pecheur and C-48/93 Factortame.

This was a precedent-setting judgement on par with earlier judgements on the primacy of Community law, the direct applicability of provisions of Community law and recognition of the Community’s own set of fundamental rights.[ Discussed supra.] In fact the Court itself refers to the judgement as ‘the necessary corollary of the direct effect of the Community provisions whose breach caused sustained damage,’ aqnd considerably enhances the possibilities for man individual to force State bodies of all three centres of power (i.e. legislative, executive and judiciary) to comply with and implement Community law. The judgement expands upon two earlier rulings which restricted the liability of Member States to instances where individuals suffered harm as a result of failure to transpose in good time, a directive giving them personal rights but not directly addressed to them. The latest judgement however, established the principle of general liability encompassing any infringement of Community law attributable to a Member State. Member States liability for legal acts or failure to act is considered to be defined by three criteria which are largely the same as the rules applying to the Community in a similar situation.

· The aim of the Community provision which has been infringed must be to grant rights to the individual.

· The infringement must be sufficiently serious, that is a Member State must clearly have exceeded the limits of its discretionary powers to a considerable degree. This must be decided by the national courts, which have sole responsibility for ascertaining the facts and assessing the seriousness of the infringements of Community law.

The Court itself offers the following as basic guidelines:

‘The factors which the competent court may take into consideration include the clarity and precision of the rule breached, the measure of discretion left by that rule to the national or Community authorities, whether the infringement and the damage cause was intentional or involuntary, whether any error of law was excusable or inexcusable, the fact that the position taken by a Community institution may have contributed towards the omission, and the adoption or retention of national measures or practices contrary to Community law. On any view, a breach of Community law will clearly be sufficiently serious if it has persisted despite a judgement finding the infringement in question to be established, or a preliminary ruling or settled case-law of the Court on the matter from which it is clear that the conduct in question constituted an infringement.’

· A direct causal link must exist between the infringement of the obligation of the Member State and the harm suffered by the injured party. It is not necessary to demonstrate fault (intent or negligence) in addition to establishing that a sufficiently serious infringement of Community law has occurred.

With respect to the infringement of Community law specifically by national courts, the ECJ makes it quite clear that the principles for determining liability also apply to the last of the three central powers –the judiciary. Its judgements are now not only subject to review at successive stages of appeal; if they were delivered in disregard or infringement of Community law, they may also be the subject of an action for damages before the competent court in the Member States.

When ascertaining the facts surrounding a judgement’s infringement of Community law, proceedings of this kind must also reconsider the questions relating to the substance of Community law, in the process of which the court concerned may not merely invoke the binding effects of the judgement of the specialised court dealing with the case. On the contrary, the court to which the competent national courts have to refer questions of interpretation and/or the validity of Community provisions, and also the compatibility of national liability regimes with Community law, is the Court of Justice, to which questions may be referred under the preliminary ruling procedure.

[Extracted with minor editorial adaptations from Dr.Klaus-Dieter Borchardt, The ABC of Community Law, Fifth Ed.,200, European Communities,pp.88-93]

TACKLING SOME PROBLEMS BEFORE THEY ARISE

Given the new and extensive rights and obligations which will be involved in the Caribbean Single Market and Economy, it is every confidence that one anticipates a very heavy workload for the Caribbean Court of Justice. Additionally, as with the European experience, certain facets of the institution’s jurisdiction will become the beacon, lighting the way forward in the uniform application of Community law. For this reason, there is great empathy with the following declaration from the Commission of the European Communities:

The preliminary ruling procedure is undoubtedly the keystone of the

Communitys’s legal order. Forty years’ experience have shown that it is

the most effective means of securing the uniform application of

Community law throughout the Union and that it is an exceptional

factor for integration owing to the simple, direct dialogue which it

establishes with national courts.”[4]

With that thought in mind therefore, one may attempt a discussion which is pre-emptive. Certain issues surrounding the judicial system of the EU have been the focus of discussion for years and are now the subject of consideration by their Inter-Governmental conference. A Working Party was established by the Commission in May 1999 and adopted its report in January of this year.[Report by the Working Party on the Future of the Communities’ Court System] One of the startling features noted was that preliminary rulings increased from 141 in 1990 to 246 in 1998, a 87% increase. If that were to happen in CARICOM , there could be a crisis of no mean proportions. It may therefore be prudent to assess the findings of the Working Party to ascertain what we may begin to think about when similar problems arise in our own arrangements.

The ensuing discussion therefore draws heavily on those findings, repeating some directly and making an effort to adapt others, or plainly presenting them and offering relevant comments thereon.

The Working Party rejected a suggestion that involved making courts of final instance the only courts to refer questions. For similar reasons they rejected another proposal which called for excluding only references from national courts of first instance.

It has already been indicated that CARICOM did not go to any of these extremes. All first instance courts are not included, but at the same time the intermediate approach taken of enabling only Superior Courts to make referral, incorporated final instance courts. Additionally, the fact that ‘other tribunals’ could make referrals means that some first instance bodies will be able to engage in dialogue with the CCJ. In the case of the Working Party, the decision to reject the proposals arose from the fact that up to the end of 1998, some three-quarters of the preliminary questions referred ab initio, came from first instance courts[5]

Therefore,…to deny access to the Court…for the national courts which have hitherto referred the great majority of preliminary questions would make excessive inroads into the co-operation and dialogue which must be maintained between national courts and Community Courts.

They took the view that this kind of reform could have a “…perverse effect…” at the national level. This would occur by way of litigant being encouraged

“…or at least the richer ones, to pursue their cases right through to the very highest courts in order to gain access to the Court of Justice by referring a question for a preliminary ruling.” [6]

In the words of the report, the aim is definitely not to create congestion in national courts of first instance.

The idea was also floated that national courts be left to settle all questions of Community law by themselves, with the parties only entitlement being to bring the national judgment “…in a sort of longstop appeal claiming breach of Community law.” [7]The group took the view that national courts should be able to deal with issues of Community law in the exercise of their national jurisdiction by being entitled or obliged to refer questions to the supreme judicial body, and this without having to pass through a hierarchy of national courts. In their own words to accept such as proposal would be to

debase the entire system of co-operation established by the Treaties…

a system that has proved its worth.

The analysis turned instead to other ways of reforming the system and concomitantly reducing the caseload of the ECJ. First of all national courts should be encouraged to be bolder in applying Community law themselves. This involved three dimensions [actually proposed in the report as Treaty amendments.]

--the first consists in stating the fundamental principle that the courts of Member `

States have full authority to deal with questions of Community law which they

encounter, subject only to their right or their duty to refer question to the Court

for preliminary rulings.

--the second consists of informing courts other than those of final instance [for

whom the only option is to refer,] that they must endeavour to not to refer

questions systematically. When assessing the advisibility of referring a question

such courts should consider both the importance of the question in terms of

Community law and whether there is reasonable doubt about the answer.

“In other words they should be dissuaded from referring matters to

the Court…where Community law clearly states what the answer

should be or where the point raised has no legal significance…”[8]

The reports points out that the notion of reasonable doubt was already clarified in Cilfit

(Case 283/81 [1982] ECR 3415), and that it would be for the ECJ to determine whether there needs to be greater flexibility in its application. In terms of the notion of significance for Community law, this fits in with the maxim de minimis non curat preator. Here again it was for the Court, when asked by national tribunals, to state the precise scope which it thinks should be given to it.

It is appropriate to stress here that the attitude towards both the ‘acte claire’ and the significance notions are of some significance, as the Caribbean Court begins grappling with these problems.

--the third dimension concerns the obligation imposed on courts of final instance to

consult the Court when a question of Community is pleaded before them.

“In practice, it has not always been possible to follow such a rigid

obligation.” [9]

With that in mind the Working Party would wish that there be an obligation imposed upon courts of final instance to refer only questions which are sufficiently important for community law and about whose resolution there remains reasonable doubt after having been examined by lower courts. From the CARICOM perspective, this lack of rigidity already exists in that while there is a duty to [shall] refer, the court still has to answer the question whether ‘it considers that a decision on the question is necessary to enable it to deliver judgment..’ If the court makes a decision which the litigants believe is the incorrect one, they have the option of having a higher court make the reference to the CCJ or themselves seeking to have that institution review the decision under the direct action procedure. In fact the Working Party went on to stress that this approach would not pose a threat to the uniform application of Community law.

There would still be two ways of remedying any breach by a court of

final instance, at least where such a breach resulted in a decision

which conflicted with Community law:

*the first is for any court in the same or another Member State to

consult the Court… on the point of Community law in question;

*the second is for the Commission to bring an action for failure to

fulfil its obligations against the Member state whose court has shown

ignorance of Community law.[10]

These remedies would also be available in the Caribbean Community context. The Report also stressed that in the final analysis, the Commission, as guardian of the Treaties, could ask the Court to decide the question, without setting any time limit. The resulting decisions would restore the uniform application of Community law for the future.

A fourth dimension emerges from the three set out above. This is the requirement that a national court must consult the Court of Justice when it proposes not to apply a Community act on the grounds of invalidity. They take the view that this should be incorporated in the Treaty. While that stage is not yet reached in the present context, it is arguable that recourse to the CCJ by the Community Organ or Institution concerned, a Member State or natural or legal persons with locus standi could operate to cure this defect.

In terms of irrelevant, premature or poorly-prepared references, and those which concern only the specific application of Community law and not its interpretation, the Working Party proposed that

mandatory provisions, failure to comply with which would render

references inadmissible should be incorporated in the rules of

Procedure. [11]

These could be supplemented with recommendations from the Court, including possibly a standard model for the formulation of references.

This appears to be a proposal suited for the CCJ as it would assist in the institution setting out on the correct footing. Two other suggestions eminently suited to the Caribbean context involve placing in the Rules of Procedure

i) the option of the regional judicial body replying at any stage in the procedure, to the national court, by means of reasoned order where the reply is obvious. An example where this approach would be applicable include where there can be no reasonable doubt as to interpretation.

ii) Secondly, encouraging national courts, but not obliging them, to include in the preliminary questions reasoned grounds for the answers that those courts consider most appropriate. Where the regional court concurs, it would reply specifying its reasoning by reference to the reasons given by the national court.

The report was quite anxious that the essential purpose of the proposals was to allow national courts to be better placed to give informed decisions on the growing number of Community law issues facing them. On the other hand, only the most resolute action on the part of Member States could secure this objective. The action envisaged by the Working Party is of ‘direct applicability’ to the Caribbean Community in the thrust to establish its own Court of Justice. Two focal points for action by Member States were identified:

[F]irst, there is an urgent need to give better training in Community law

to all those involved in referring questions for preliminary rulings, be

they judges or lawyers. The training should be complete and not just –as

is too often the case at the moment –confined to a description of Community institutions, without a detailed study of the case law.[12]

While there is as yet no ‘case law’ in a judicial sense, in respect of CARICOM , the fact is that the regional universities and the Organs of the Community, together with the Private and Public Bar and the Judiciary, should be engaged in Seminars, Symposia, short and long courses on the CSME and the implications for its establishment with a judicial body to oversee compliance with its rules. The case law of other regional integration movements could then be applied, as appropriate, to assess possible courses of judicial action in respect of specified rights and obligations.

[S]econdly, powerful information systems should be made available to practitioners, providing them with easy access to the latest information on Community legislation and case law.[13]

In line with the actions envisaged, the report recommended that Member States establish

“…national information centers on Community law, with computer links to the Commission’s departments and to the Court of Justices’s Research and Documentation Service. Run by experienced specialists in Community law, these would give invaluable aid to national judges and lawyers to enable them gradually to settle, under proper conditions, an increasing number of difficulties themselves, which for lack of adequate information they currently refer to the Court of Justice. [14]

While the Project Co-Ordinating Unit for the Establishment of the CCJ has proposed the setting up of a CCJ Computerization Group to assess and make recommendations on the new institution’s needs in this area, the truth is that the linkage to the national dimension was not articulated as clearly. Adoption of this idea and generalized across the two facet’s of the CCJ’s jurisdiction would make a signal contribution to the enhancement of the Justice Systems in the Member States of CARICOM. In fact, given the positive attitude of both the European Union and the European Court of Justice towards the CCJ, this is an area in which technical assistance could perhaps be requested.

The foregoing represented the reformist proposals advanced. There were more radical suggestions as well. They are being reproduced here to ensure the completeness of the discussion. Three such proposals were advanced, two of which could be seen as relevant to the current context. These are that

--the Member States might set up devolved judicial bodies specializing in preliminary ruling; and

--the Court might select certain questions from among those referred to it.

The setting up of the devolved courts at the national level was seen as having the advantages of relieving the ECJ of examining those preliminary questions which were not specially significant for the purposes of Community law, as well as reducing administrative costs and time lags –both major problems in our regional justice systems. On the other hand, there were serious disadvantages.

In the first instance, the preliminary ruling procedure involves a dialogue between the referring court [which is hearing the principal action and which alone is fully familiar with the case] and the Community court [which alone is capable of securing a uniform interpretation of Community law.] It was felt that to interpose another court between these two would jeopardize the objective of uniform application of the law, even if the new court were obliged to refer specially significant question to the Court of Justice. There would now be three courts considering the same issues in succession, thereby prolonging the proceedings. The view was also taken that the outcome would be essentially the same even if the questions were first submitted to the regional court for assessment, with the less important ones being remitted to the devolved court. In the latter scenario, a degree of uniformity could be assured, but the advantages of devolution would be mostly lost in the process.

Another critical disadvantage of this route is the fact that the administration of devolved courts would entail heavy outlays in financial, human and material resources [which are not available,] and also it could distort the national court structure.

The other ‘radical’ proposal involved giving the ECJ itself the power to select those preliminary questions which it felt were sufficiently important for the purposes of Community law. Other questions would be sent back to the referring court “…possibly with observations that could help national judiciaries,” a procedure similar to that which obtains in the practice of the United States Supreme Court. [15] The report took the view that while this would be simple and effective and would save money

“…such an arrangement cannot be transposed at present to a system

of courts which is radically different from the United States: unlike the American system, the Community courts and national courts are not ranked in a hierarchical relationship to each other –the system is based entirely on co-operation and dialogue…It is this co-operation and dialogue which would be upset by such a crude form of selection as that just described.” [16]

As ‘crude’ as the proposal may be, the fact is that in terms of the Caribbean Court of Justice’s relationship to national courts, there is a hierarchical relationship.

The Court will be an institution sui generis. It will be a final instance tribunal for those Members States adhering to its Appellate Jurisdiction in substitution of the Judicial Committee of the Privy Council, or adding a third appellate tier as in the case of Guyana. On the other hand, it will also be a court of first and last instance in its Original Jurisdiction as it will be charged with interpreting and applying the Treaty of chaguaramas. In both facets, national courts will be bound by the judgments of the Caribbean Court of Justice. This is reinforced by the provision in the Agreement and Protocol IX on judgments of the Court constituting binding precedent.

With the foregoing in mind, perhaps a less offensive selection process could perhaps be elaborated. This would not go as far as devolution, but would give greater responsibility on national courts to carefully select reference questions. Additionally, it provides a filtration mechanism which may be usefully adopted after the new institution has ‘cut its teeth’ into its tasks, but before the envisaged ‘flood’ of references.

Signposts To The Development of Judicial Institutions In The