10. Preliminary Rulings Flashcards
What is the concept of preliminary rulings in EU law?
It involves an incidental or interlocutory intervention of the Court of Justice of the European Union (CJEU) in main proceedings before national courts.
This is a cornerstone of EU law application that is based on judicial cooperation and acts as a federalising instrument.
What is the purpose of a preliminary referral under Article 267 TFEU?
To seek interpretation of EU primary or secondary law or to judge the validity of EU secondary law. It is a method of resolving conflict and controlling Member State rule-making activity through the principle of primacy.
What is a plea of illegality in the context of EU law?
A procedure in main proceedings before the CJEU (Art. 277 TFEU) where parties in a direct action may challenge the validity of an act of general application adopted by an EU institution, body, office, or agency, even after the limitation period for annulment has expired.
What is the CJEU’s competence regarding preliminary rulings?
The CJEU has a monopoly, although jurisdiction can be allocated to the General Court (GC) in specific areas through the Statute of the CJEU (Art. 256(3) TFEU).
Who has standing to request a preliminary ruling?
Any court or tribunal of a Member State.
The criteria include being established by law, being permanent, having compulsory jurisdiction, following an inter partes (parties have chance to present argument) procedure, applying rules of law, and being independent.
Is the interpretation of ‘court or tribunal’ broad or narrow? Give some examples.
Broad, but with a tendency towards more restrictive interpretation. Examples include doctors’ professional associations, judicial boards, and public procurement tribunals.
Is referring a question to the CJEU a right or a duty?
It can be a right or a duty depending on the instance and whether the question concerns validity or interpretation.
Under what circumstances is a court or tribunal obliged to refer a question to the CJEU?
If the case is in the highest national court and there are doubts of validity or interpretation.
(Art. 267(3) TFEU)
What is the acte clair doctrine?
It states that there is no obligation to refer if the correct application of EU law is so obvious as to leave no scope for any reasonable doubt.
What is the acte éclairé doctrine?
It applies when a question is materially identical to a previously solved question, but it does not apply to validity questions.
What are the rules regarding preliminary questions on validity?
There is an obligation to refer preliminary questions on validity (314/85 Foto-Frost). Only CJEU can declare EU laws invalid.
Does a national court have discretion in preliminary referrals?
Yes, the court has broad discretion regarding the content and number of questions and the possibility to refer even if it is not the last instance.
What conditions make a preliminary referral inadmissible?
Several conditions, including if the questions are not related to either interpretation or validity of EU law, if they concern national law or facts of national proceedings.
What are the effects of a refusal to refer questions to the CJEU?
Appeal before national courts, where there is an obligation based on EU law in the form of Member State liability for breaches of EU law.
What are the effects of preliminary rulings in time?
Preliminary rulings are generally retroactive from the adoption of the interpreted or judged EU provision.
What are the subjective effects of preliminary rulings?
The fulfilment of a preliminary ruling is primarily on the referring court. Preliminary rulings are mandatory, binding on all of a Member State’s bodies.
What are the objective effects of preliminary rulings?
All preliminary rulings produce effects, even aspects beyond the request (applies to all similar cases).
What is the possibility of invoking unenforceability of EU provisions under Art. 277 TFEU?
There is a possibility of invoking the unenforceability of EU provisions of general application before the CJEU under Art. 277 TFEU.
Who has competence in plea of illegality proceedings, and what is the subject matter?
The CJEU has competence in direct actions before it, but not in preliminary rulings. The subject-matter mandates that there must be a direct link between the provision and the case at hand.
Who has standing in plea of illegality proceedings?
Individuals, Member States, and EU institutions, bodies, and offices which are parties to proceedings in a direct action.
What are the effects of a plea of illegality?
Inter partes, but the EU institution must withdraw the provision.
What is re-examination in the context of CJEU proceedings?
The CJEU may review on its own motion GC judgments on cassation (highest court) against specialized courts’ judgments or preliminary rulings.
What are interim measures in CJEU proceedings?
The CJEU may suspend contested acts under Art. 278 TFEU and order necessary interim measures under Art. 279 TFEU.
