In the recent case of R (Horvath) v Secretary of State for the Environment, Food and Rural Affairs, the Court of Appeal was asked to assess a possible failure on the part of the UK Government to enact an EC Regulation and took the view that, unless it had confidence in its ability to resolve the EC question, it should refer the matter to the ECJ.
When a question of European Community law arises before a national court, that court can, at its own discretion, refer the question to the ECJ for a preliminary ruling on the application of EC law in that case. If a court is in the position of being the highest court in the land, from which there is no appeal, it has no discretion and must refer any question on the application of EC law to the ECJ.
In the Horvath case, an EC Regulation had been enacted into domestic law in England but not in Wales, Scotland or Northern Ireland. Mr Mark Horvath sought to challenge this, as has considered that it led to a disparity between the situation in England and that in the other three jurisdictions with regard to farming subsidies. The Court of Appeal considered that, while it had the discretion not to refer this question to the ECJ, unless the court had complete confidence in its ability to resolve the issue satisfactorily then it should refer it to the ECJ.