6 - The Preliminary Reference Procedure: General Aspects and Interpretation

Question 1

What will be explored in this lecture? (6)

Answer 1

1/ the 3 former PR procedures

2/ interpretation questions

3/ ‘referring courts’

4/ ‘supreme courts’

5/ test cases (contrived/hypothetical) in EU law

6/ legal effects of PR

Question 2

What were the 3 PR procedures before Lisbon?

Answer 2

1/ Art. 234 EC/177 EEC: interpretation of primary and secondary Community law + validity of secondary Community law

2/ Art. 68 EC: interpretation of primary and secondary Title IV law + validity secondary Title IV law (immigration + private IL)

3/ Art. 35(1)(4) EU: interpretation of only secondary Title VI law + validity secondary Title VI law (PJCC)

Question 3

Considerations on previous Title IV EC/ex Art 68 EC? (2)

Answer 3

1/ subordinate courts may not ask for a PR

2/ if did nonetheless refer, ECJ would rule it clearly has no jurisdiction to answer (e.g. Warbecq)

Question 4

Considerations on previous third pillar/ex Art. 35 EU? (4)

Answer 4

1/ no compulsory jurisdiction of ECJ

2/ if jurisdiction ECJ was accepted, scope of jurisdiction was limited (Art. 35(1) EU)

3/ national supreme courts did not have to refer

4/ however, MS could declare their supreme courts had to refer

Question 5

What did Lisbon introduce? (2)

Answer 5

1/ Art. 267 => 1 PR procedure

2/ therefore, abolished complicated system

Question 6

Jurisdiction of CJEU under Art. 267 TFEU? (3)

Answer 6

1/ interpretation of Treaties

2/ validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union

3/ Art. 267(4): person in custody

Question 7

What does the term ‘Treaties’ in Art. 267 encompass? (6)

Answer 7

1/ TEU (except most of CFSP - Art. 24(1) TEU, Art. 275 TFEU - Rosneft)

2/ entire TFEU (incl. Part V on AFSJ)

3/ CFR

4/ Euratom

5/ gnl pcples

6/ agreements EU-3rd countries

Question 8

What falls outside jurisdiction of CJEU in Art. 267 procedure? (2)

Answer 8

1/ national law

2/ see however Leur-Bloem, Ullens de Schooten (exceptional cases of jurisdiction in purely internal situations)

Question 9

What does the term ‘acts of the institutions…’ under Art. 267 encompass? (3)

Answer 9

1/ binding acts

2/ non-binding acts

3/ in practice, usually questions on Regulations and Directives

Question 10

What is main purpose of Art. 267 procedure? (2)

Answer 10

1/ ensure EU law is interpreted and applied in uniform manner in all MS

2/ one central judge has final say

Question 11

Considerations on Art. 267 TFEU? (4)

Answer 11

1/ rather successful

2/ more or less followed by Council of Europe since 2018 (Protocol 16, Art. 1)

3/ no hierarchy but form of cooperation btwn ECJ and national judges

4/ unique procedure, not to be found in other IOs

Question 12

What must EU PR procedure not be confused with? (2)

Answer 12

1/ ECHR individual complaint procedure

2/ Arts. 34, 35 ECHR (ind. applications & admissibility criteria)

Question 13

Considerations on jurisdiction ECJ on interpretation questions? (3)

Answer 13

1/ some 80-90% of all PQs

2/ purpose of interpretation Qs is usually to assess whether national law is in conformity with EU law

3/ other route to ECJ here is Arts. 258/259 infringement action (see VGL, 1963)

Question 14

Considerations on jurisdiction ECJ on validity questions? (2)

Answer 14

1/ main purpose of validity question is to assess whether secondary Union law is in conformity with primary Union law

2/ other route to ECJ here: Art. 263 annulment action

Question 15

What is the legal weight of PR ruling? (2)

Answer 15

1/ in all cases (interpretation + validity), ECJ gives a binding judgment

2/ see Puligienica (para 38)

Question 16

What are 2 main rules regarding references by national courts according to text of Art. 267 TFEU?

Answer 16

1/ subordinate/lower courts may refer but do not have to

2/ supreme/highest courts must refer (no judicial remedy under national law for decision)

Question 17

What is a ‘court or tribunal of a MS’? (3)

Answer 17

1/ autonomous concept of EU law

2/ if unclear, apply number of factors or criteria

3/ ECJ has an ad hoc approach as all criteria do not have to be met

Question 18

What are the factors/criteria the ECJ takes into account to assess whether an entity is a court/tribunal? (4)

Answer 18

1/ referring entity established by (national) law

2/ permanent status

3/ compulsory jurisdiction

4/ independent, composition

Question 19

What are exceptions according to which lower courts must refer PQs? (3)

Answer 19

1/ if serious doubt as to the validity of secondary EU law (Foto-Frost)

2/ if, in concrete case, no legal remedy available (‘concrete theory’, Costa/ENEL, 1964)

3/ however, see Lyckeskog rulig (2002): lower court not obliged to refer although appeal only possible if supreme court declared it admissible (= abstract theory?)

Question 20

What are exceptions to the rule that supreme courts must refer? (4)

Answer 20

1/ relevance/necessity requirement (Cilfit)

2/ acte éclairé (Cilfit)

3/ acte clair (Cilfit)

4/ supreme court decides in interim proceedings (Morson and Jhanjan)

Question 21

Considerations on the ‘relevance/necessity requirement’ in Cilfit? (2)

Answer 21

1/ question of EU law must be necessary to enable supreme court to give judgment

2/ if question is not relevant (i.e. answer cannot affect outcome of the case), supreme courts not obliged to refer

Question 22

Considerations on the ‘acte éclairé’ exception in Cilfit? (3)

Answer 22

1/ ECJ has already ruled on the same or a similar question regarding interpretation of EU law

2/ applies irrespective of nature of preceding proceedings

3/ but supreme courts remain entirely at liberty to refer matter to ECJ once again, as ECJ may change its view (e.g. Keck, Metock, Faccini Dori)

Question 23

Considerations on ‘acte clair’ exception in Cilfit? (5)

Answer 23

1/ obvious what answer the ECJ will give to the supreme court’s Q on interpretation of EU law

2/ ‘so obvious as to leave no scope for any reasonable doubt’

3/ however, ECJ formulated very strict conditions

4/ answer must be equally obvious to all other courts of all other MS + to ECJ

5/ supreme court must take into account the characteristic features of EU law and the particular difficulties to which its interpretation gives rise (language, terminology, provision in context & EU law as a whole)

Question 24

Questions regarding Cilfit caselaw? (3)

Answer 24

1/ can Cilfit conditions really be taken seriously by supreme courts?

2/ should ECJ relax the conditions? (judgment is from 1982)

3/ however, in AFNE (2016) ECJ ruled supreme courts must refer when they have the slightest doubt as regards interpretation/correct application EU law (= Cilfit?)

Question 25

What is difficult for private parties in proceedings before supreme court? What are alternatives? (3)

Answer 25

1/ if supreme court refuses to refer Q to ECJ by implicitly applying Cilfit acte clair doctrine, no direct access to ECJ for private parties

2/ however, they can ask EC/their own MS to start Art. 258/259 TFEU procedure (e.g. Accor II) (but EC very reluctant bc independence national judiciary)

3/ they can also start a Francovich/Köbler action in a national court (but strict conditions + chance of ending before the same supreme court that refused to refer)