PhD Defense Mr. J.R.K. Asarfi MPA LLM
The Caribbean Court of Justice at a Crossroad. The Caribbean reference procedure of the CCJ in light of the preliminary reference procedure of the CJEU
- Location: Cobbenhagen building, Aula
- Supervisors: Prof. M.A. Loth, Prof. R.A.J. van Gestel
Why has the reference procedure of the Caribbean Court of Justice (CCJ) remained inactive considering that it was inspired by the preliminary reference procedure of the Court of Justice of the European Union (CJEU)?
This is quite puzzling because despite the resemblance in procedures and the similarity in texts and purposes, the outcome has been different in both continents. Compared to the Caribbean, the CJEU and its reference procedure have been criticised for being a ‘paradox of success’ or the ‘victim of its own success’, because of an enormous increase in requests for preliminary rulings, which have led to an overload for the CJEU. In contrast, the Caribbean reference procedure has delivered no referrals and appears to be the victim of something else. What is also worth noting is that the CCJ has enabled the direct access of individuals and private entities to itself through Article 222 of the Revised Treaty of Chaguaramas (RTC) while the CJEU lacks a similar provision.
In finding a sufficient explanation, the Caribbean reference procedure under Article 214 RTC is compared with the preliminary reference procedure of Article 267 of the Treaty on the Functioning of the European Union (TFEU) and the development of this procedure. In this regard, various perspectives are taken into account, revealing that there are several possible explanations which could explain why the CCJ has not been receiving any questions on Community law from national judges until date.
In her dissertation, Jacintha Asarfi first delves into the historical background of the CCJ and its founding treaty to find possible explanations by contrasting it to the European founding treaties. Furthermore, as Caribbean citizens and companies have brought cases via the direct access procedure of Article 222 RTC, she also analyzes the CCJ case law via this direct access procedure and contrasts how the Caribbean court has interpreted the RTC with the way in which the CJEU has interpreted the EU treaties in its initial case law via the preliminary reference procedure. Another step taken is to explore why the Caribbean national judges have not made any referrals by analyzing the potential referral cases of these courts. Finally, this study searches for an explanation for the lack of referrals by exploring four theories on the initial resistance of European national judges in using the preliminary reference procedure of the CJEU.
Thus, this research reveals that there are several possible explanations, other than the lack of knowledge of the referral procedure amongst the Caribbean national judges, which could explain why the CCJ has not been receiving any questions in the early years. From a treaty perspective and the related historical background, one can conclude that the CCJ is suffering from a ‘post-colonial syndrome’. This entails that the Court was established to replace the court of the colonizer (Judicial Committee of the Privy Council), but the majority of the Member States of the Caribbean Community (CARICOM) still hold on to this British court as their final court of appeal. Moreover, from a case law perspective, the way in which both courts developed their respective procedures through their respective case law indicates that the CCJ has been less pro-active than the CJEU. However, the analysis of the national judgments of the CARICOM national courts indicates that there have been several potential cases which have not been referred to the CCJ even though there were issues regarding the interpretation and application of the RTC. Additionally, this study shows that contrasting the strategies for not referring of European judges in the early years of the European Union (EU) with those of the Caribbean national judges leads to the conclusion that the latter might have been inspired by their European counterparts when it comes to withholding references to the regional court by using similar strategies.
Based on this research, the presumed lack of knowledge of the referral procedure amongst Caribbean national judges – which is often put forward as a possible explanation for the lack of referrals, mainly by the CCJ itself - is not a very probable explanation (anymore). Thus, this study indicates that there are other explanations that must be considered and that there is more than meets the eye.