267 References

Question 1

How do you know if its a court or tribunal?

Answer 1

Apply Dorsch -

1. Is it a body established by law?
2. Is it permanent?
3. Does it apply rules of law?
4. Is it independent?
5. Is its jurisdiction mandatory?
6. Is its procedure inter partes?

Question 2

Any other guidance on courts / tribunals?

Answer 2

Yes!
Broekmuelen - not all five criteria have to be justified.
Nordsee - private abritration was not a court as it was voluntary.

Question 3

How can you tell if a reference to the ECJ is necessary?

Answer 3

CILFIT criteria. Remember - if it applies it is NOT necessary.

1. Is the question relevant to the outcome of the case?
2. Has the question already been dealt with (Da Costa)?
3. Is the course of action so obvious as to leave no scope for reasonable doubt? (Acte Clair, Da Cosa)

Note: CILFIT notes that course of action is not always obvious, EU law is a specialist area.

Question 4

What are the two types of courts?

Answer 4

Mandatory and Permissive jurisdiction.

Question 5

Which court must make a reference?

Answer 5

Mandatory - it is a court with no further appeal (Art. 267 (3)) (Costa v ENEL).

Question 6

What will happen if a mandatory court does not make a reference?

Answer 6

The ECJ won’t intervene but they leave themselves open for a state liability claim if individual has ‘sufficiently serious’ grounds (Kobler).

Question 7

What type of court does not have to make a reference? Any guidelines on when they should from the ECJ?

Answer 7

Permissive. Yes! An information note:

• References particularly useful when there is a new question on the uniformity of application and when existing case law doesnt apply to new set of facts.
• Higher courts cannot prevent lower courts from making references (Rheinmuellen).
• EU law cannot be declared invalid; where there’s a question on validity a reference must be made (Foto Frost).
• Prudent to scope factual and legal landscape before making ECJ reference.

Question 8

Any UK guidelines on when to make a reference?

Answer 8

Yes -
Else Ltd; Lord Bingham encouraged references and said ECJ was authority on the matter;
Trinity Mirror encouraged ‘self restraint’ and references for when there is a matter of seriousness and a potential to support uniform application.

Question 9

Can the ECJ reject a reference?

Answer 9

Yes.

1. If there is no dispute (Foglia v Novello)
2. If it concerns national law (Costa v ENEL)
3. If there is not enough factual context (Circostel).

Question 10

How should we conclude?

Answer 10

267 4(3); ruling is binding, will be uniformally applied, regardless of court.
ECA '72; ECJ rulings are binding.