6 - The Preliminary Reference Procedure: General Aspects and Interpretation Flashcards
What will be explored in this lecture? (6)
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
What were the 3 PR procedures before Lisbon?
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)
Considerations on previous Title IV EC/ex Art 68 EC? (2)
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)
Considerations on previous third pillar/ex Art. 35 EU? (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
What did Lisbon introduce? (2)
1/ Art. 267 => 1 PR procedure
2/ therefore, abolished complicated system
Jurisdiction of CJEU under Art. 267 TFEU? (3)
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
What does the term ‘Treaties’ in Art. 267 encompass? (6)
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
What falls outside jurisdiction of CJEU in Art. 267 procedure? (2)
1/ national law
2/ see however Leur-Bloem, Ullens de Schooten (exceptional cases of jurisdiction in purely internal situations)
What does the term ‘acts of the institutions…’ under Art. 267 encompass? (3)
1/ binding acts
2/ non-binding acts
3/ in practice, usually questions on Regulations and Directives
What is main purpose of Art. 267 procedure? (2)
1/ ensure EU law is interpreted and applied in uniform manner in all MS
2/ one central judge has final say
Considerations on Art. 267 TFEU? (4)
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
What must EU PR procedure not be confused with? (2)
1/ ECHR individual complaint procedure
2/ Arts. 34, 35 ECHR (ind. applications & admissibility criteria)
Considerations on jurisdiction ECJ on interpretation questions? (3)
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)
Considerations on jurisdiction ECJ on validity questions? (2)
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
What is the legal weight of PR ruling? (2)
1/ in all cases (interpretation + validity), ECJ gives a binding judgment
2/ see Puligienica (para 38)
What are 2 main rules regarding references by national courts according to text of Art. 267 TFEU?
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)
What is a ‘court or tribunal of a MS’? (3)
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
What are the factors/criteria the ECJ takes into account to assess whether an entity is a court/tribunal? (4)
1/ referring entity established by (national) law
2/ permanent status
3/ compulsory jurisdiction
4/ independent, composition
What are exceptions according to which lower courts must refer PQs? (3)
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?)
What are exceptions to the rule that supreme courts must refer? (4)
1/ relevance/necessity requirement (Cilfit)
2/ acte éclairé (Cilfit)
3/ acte clair (Cilfit)
4/ supreme court decides in interim proceedings (Morson and Jhanjan)
Considerations on the ‘relevance/necessity requirement’ in Cilfit? (2)
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
Considerations on the ‘acte éclairé’ exception in Cilfit? (3)
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)
Considerations on ‘acte clair’ exception in Cilfit? (5)
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)
Questions regarding Cilfit caselaw? (3)
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?)
What is difficult for private parties in proceedings before supreme court? What are alternatives? (3)
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)
