Questioning the Necessity and Suitability of the Article 214 Referral Procedure for CARICOM

The referral procedure established under Article 214 of the Revised Treaty of Chaguaramas (“the RTC”) is one of the most conceptually complex features of the Caribbean’s regional integration scheme. Pursuant to Article 214:

'Where a national court or tribunal of a Member State is seised of an issue whose resolution involves a question concerning the interpretation or application of this 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 judgment.'

According to Anderson (2023), “the referral process is to be utilised where a claim is filed in the domestic Court of a CARICOM Member State, and an issue regarding the interpretation and application of the RTC arises…” Kaczorowska-Ireland and James (2019) have explained that the objective of the Article 214 is to “…foster a fruitful dialogue between the CCJ and national courts with a view to ensuring the uniform and effective application of CSME law…”. However, despite the theoretical importance of the Article 214 referral procedure there have been no referrals to the Caribbean Court of Justice (CCJ) since its inauguration in 2005. While several potential reasons have been proffered for the quiescence of the Article 214 referral procedure by national courts and tribunals across CARICOM Member States, this brief commentary questions the necessity and suitability of the Article 214 referral procedure for CARICOM in the light of certain factors: 1. the CARICOM’s intergovernmental ordering by institutional design; 2. the existence of adequate mechanisms to ensure the uniform and effective application of CSME law; and 3. the absence of a clear mechanism for “checks and balances” on the exercise by national courts or tribunals of their “limited” discretion under Article 214.

CARICOM’s intergovernmental ordering by institutional design

As postulated by Brewster (2003), CARICOM operates within an intergovernmental framework of cooperation. This means, among other things, that the decisions of the CCJ made in the exercise of its original jurisdictions do not enjoy “direct effect” or “direct applicability” across CARICOM member states, and cannot override national Constitutions should any conflict arise. By contrast, as per the case of Costa v ENEL, EU Community law asserts supremacy over the national laws, including the Constitution. Unfortunately, CARICOM’s intergovernmental ordering by institutional design precludes the CCJ from making a similar pronouncement.

The fact that the CCJ’s original jurisdiction decisions are not directly effective at the national level and do not enjoy direct applicability within the domestic legal systems of CARICOM member states impacts the utility of the Article 214 referral procedure in practice. Indeed, national courts may be hesitant to make referrals to the CCJ under Article 214, knowing that even if the CCJ provides a judgment on a question concerning the interpretation and application of the RTC interpretation, that judgment may not have the same binding effect domestically. This may become particularly problematic when national courts are confronted by conflicts between CSME law and domestic constitutional provisions. This concern is further complicated by the fact that only five of the fifteen CARICOM member states have thus far acceded to the appellate jurisdiction of the CCJ. 

Moreover, national judges appear to be emboldened in their apparent reluctance to refer under Article 214 by the fact that CARICOM’s intergovernmental ordering precludes Caribbean Community law from asserting paramountcy, in practice, over domestic laws (especially the Constitution). For instance, in Hadeed v The Attorney General of Trinidad and Tobago, the presiding judge openly questioned the supremacy of Caribbean Community law at the national level, noting that “…the supremacy of Community law is a matter which is yet to be interrogated by national courts. For the very least Community law is supreme at the Community level.’ (paragraph 35). This institutional design, premised on an intergovernmental ordering, therefore calls into question the suitability of the Article 214 referral procedure for CARICOM.

Existence of adequate mechanisms to ensure the uniform and effective application of CSME law

The necessity of the Article 214 referral procedure, in practice, becomes questionable when one considers that there are at least four (4) other mechanisms provided by the RTC through which the uniform and effective application of CSME law can be promoted and ensured. Indeed, Article 222 of the RTC enables private entities to have direct access to the CCJ, and Articles 211, 216 and 221 of the RTC already exist to ensure the uniform and effective application of CSME law by establishing the CCJ’s compulsory and exclusive jurisdiction to hear and determine disputes concerning the interpretation and application of the RTC; reinforcing the original jurisdiction of the CCJ in matters concerning the interpretation and application of the RTC outlined in Article 211; and making judgments of the CCJ binding precedents for parties in proceedings before it, respectively.

In practice, the existence of the aforementioned provisions reduces the need for the Article 214 referral procedure, particularly when one considers its objective. For example, the parties in DCP Successors Limited v The Trade Administrator, The Trade Board Limited, Commissioner of Customs and Excise, Jamaica Customs Agency and Blue Power Group Limited took their matter to CCJ through Article 222 after the Jamaican Supreme Court opted not to refer the matter pursuant to Article 214. This clearly illustrates that the necessity of the Article 214 referral procedure, in practice, is less persuasive in a context where other avenues exist for accessing the CCJ as well as through which the uniform and effective application of CSME law can be ensured. Contrariwise, the necessity of the EU’s “preliminary ruling procedure” (i.e. the European counterpart of the Article 214 referral procedure) is far more readily apparent since EU nationals are not granted direct access to the ECJ as the EU’s constituent instruments do not contain a similar provision to that of Article 222 of the RTC. As well, the “preliminary ruling procedure” has been the primary vehicle for promoting uniformity in the interpretation and application of European Community law since it was through that mechanism that the ECJ developed the principles of “direct effect” in the seminal case of Van Gend en Loos v Nederlandse Administratie der Belastingen, and direct applicability. Accordingly, while the necessity of the preliminary ruling procedure in promoting uniformity in the interpretation and application of EU community law is readily apparent, in practice, the same cannot easily be said for the Article 214 referral procedure in the context of CARICOM.

Absence of a clear mechanism for “checks and balances” on exercise by national courts or tribunals of their “limited” discretion under Article 214

In the case of Hummingbird Rice Mills v Suriname and the Caribbean Community, the CCJ conceded that article 214 confers upon a national court or tribunal “a measure of discretion in considering the necessity of a referral, but that discretion is a limited one” (paragraph 26). However, the absence of a clear mechanism for 'checks and balances' on the exercise of their 'limited' discretion to refer invites legitimate questions about the suitability of the Article 214 referral procedure for CARICOM, as there is no way to ensure that the 'limited' discretion conferred upon national courts or tribunals of Member States is exercised as envisaged by the framers of the RTC. Compounding this issue is the lack of a clearly delineated process through which the decision of national courts or tribunals not to refer can be reviewed and, if necessary, even overruled. If their “limited” discretion is allowed to be exercised unchecked, then the purpose of the Article 214 referral procedure will be frustrated in practice.

As noted by Asafari-Sewkaransing (2023), ‘[a]n analysis of the national judgments of the CARICOM national courts indicates that there have been several potential referral cases which have not been referred to the CCJ even though there were issues regarding the interpretation and application of the RTC.’ This observation undoubtedly underscores the risks of a system that appears to rely too heavily, at least in practice, on the discretion of national courts without a clear and effective oversight mechanism. This is especially significant to discussions about the suitability of the article 214 referral procedure for CARICOM.

Conclusion

While the utility of the article 214 referral procedure is, in theory, quite clear, there are certain factors that nevertheless invite legitimate questions about its necessity and suitability for CARICOM. These include CARICOM’s intergovernmental ordering by institutional design; the existence of adequate mechanisms to ensure uniform and effective application of CSME law; and the absence of a clear mechanism for “checks and balances” on the exercise by national courts or tribunals of their “limited” discretion under Article 214.

References:

● The Revised Treaty of Chaguaramas 2001.

● The Honourable Mr. Justice Winston Anderson, ‘The Referral Process Workshop Series: Understanding the Referral Regime of the Original Jurisdiction’ (paper presented at the Barbados Judiciary Retreat on August 5, 2023).

● Alina Kaczorowska-Ireland and Westmin R.A. James, Commonwealth Caribbean Law and Procedure: The Referral Procedure under Article 214 in the light of EU and International Law (Routledge 2019), pages 86-87.

● Havelock R. Brewster, ‘Mature Regionalism and the Rose Hall Declaration on Regional Governance’, delivered at the CARICOM 30th Anniversary Conference on Regional Governance and Integrated Development, University of the West Indies Mona Campus (2003) 2.

● Case 6/64. Flaminio Costa v ENEL [1964].

● FAQs – Caribbean Court of Justice.

● Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963].

● Hadeed v The Attorney General of Trinidad and Tobago (2019) CV.2018-02726.

● DCP Successors Limited v The Trade Administrator, The Trade Board Limited, Commissioner of Customs and Excise, Jamaica Customs Agency and Blue Power Group Limited [2022] JMSC Civ. 62.

● Jacintha R.K. Asafari-Sewkaransing, 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 (Tilburg University, February 2023).

● Hummingbird Rice Mills v Suriname and the Caribbean Community [2012] CCJ 1 (OJ).