Europos Sąjungos teisės taikymo Lietuvos Aukščiausiajame Teisme problemos ir tendencijos

Abstract

Lithuania is already in the third year of its European Union membership. This period marks not only a new political phase but also a time of a new challenge for the courts of Lithuania in applying the Community law. Irrespective of the fact that this period is yet very short, it is nevertheless necessary to evaluate the experience of the Supreme Court of Lithuania in applying the Community law as well as to distinguish certain tendencies.
Referring to the first tendency, the author defines those areas of legal relationships where the Court of Justice has lately been hearing the greatest number of cases, i.e. the areas where it is possible to expect the greatest change and innovation in the legal regulation. The author maintains that such areas as the free movement of labour and goods, the freedom of establishment and the freedom to provide services, competi- tion law and trade marks are the most dynamic areas in respect of the jurisprudence of the Court of Justice, which, in order to avoid lagging behind the reality, are bound to demand the greatest effort from national courts. The second tendency should in essence be linked to the emigration of Lithuanians to other Member States and the development of businesses with foreign partners, which increases the number of cases related with the issues of judicial cooperation in civil cases, i.e. the determination of jurisdiction, the service of judicial and non-judicial documents, collection of evidence.
The increase in the number of cassation appeals based on the provisions of Community law, the jurisprudence of the Court of Justice, where it is requested to refer for a preliminary ruling, makes it possible to speak about the third tendency, the essence of which is the emergence of a necessity to evaluate not only the arguments of the cassator related with the application of Community law, but also to use one’s discretion to determine whether this ought to be done in a concrete situation. A more profound analysis of the latter issues reveals the fourth tendency, which should be linked with the most obvious mistakes in the application of the Community law revealed by the Supreme Court of Lithuania: unfounded direct reliance on the provisions of a directive on the part of the cassator, inadequate effort of national courts to determine whether national law corresponds to the directive.
The fifth tendency ought to be related with the special status of the Supreme Court of Lithuania – a court, the decisions of which in accordance with the national law are final and without appeal – that presupposes a specific duty of referral for a preliminary ruling. In this respects, at least two issues are important: whether the Supreme Court of Lithuania invariably considers the need to refer for a preliminary ruling when requested by the parties to a case or, when faced with a particular ambiguity of certain provisions of Community law, the panels of judges use their discretion to examine the need for a preliminary ruling. The analysis of the jurisprudence of the Supreme Court of Lithuania shows that there is no unequivocal answer to those questions. Nevertheless, the author believes that it will not be long before the lawyers – both legal practitioners and academics – have, or to be more precise, are obliged, as it is the case in many other countries, to get into increasingly more profound discussions on such issues as, for instance, whether national courts are not too extensively inclined to apply the acte clair doctrine thus violating the Treaty Establishing the European Community and at the same time missing the valuable opportunity to participate in the creation of the European law thought the dialogue with the European Court of Justice.