7 - The Preliminary Reference Procedure: Validity Questions and Access to National Courts

Question 1

Outline of the lecture? (3)

Answer 1

1/ validity questions - Foto Frost and Zuckerfabrik case law

2/ relationship of Art. 267(b) to action of annulment of Art. 263(4) - TWD case law

3/ access to national courts as a precondition for the effet utile of the PR procedure - Rewe/Comet case law

Question 2

What acts can validity questions cover?

Answer 2

Acts of the institutions, bodies, offices or agencies of the EU

Question 3

Contribution of Foto Frost case (1987)? (4)

Answer 3

1/ national courts may examine EU legislation & consider it to be valid => they do not have to refer

2/ however, national courts may never declare EU legislation invalid

3/ ECJ has exclusive competence to declare EU legislation invalid

4/ therefore, all national courts (subordinate & supreme) must ask for a PR in case they have doubts as to the validity of EU legislation

Question 4

Contribution of Gaston Schul case (2005)? (3)

Answer 4

1/ although the ECJ has already declared a very similar decision invalid, making the invalidity of the contested EU decision obvious

2/ national courts must still first ask for a PR on the invalidity of the measure at hand

3/ therefore, there are no exceptions to Foto Frost case law

Question 5

What did AG Colomer argue in its Opinion in Gaston Schul case?

Answer 5

In such obvious cases, national courts should have the possibility to declare the comparable EU act invalid on the same grounds without having to refer to the ECJ

Question 6

Contribution of the Pringle case (2012)? (3)

Answer 6

1/ CJEU may only rule on validity of secondary EU law, not on validity of primary EU law

2/ ECJ: a decision of the European Council amending primary EU law is an ‘act of the institutions’

3/ therefore, ECJ has jurisdiction to examine validity of this decision of the European Council

Question 7

Contribution of Intertanko case (2008)? (2)

Answer 7

1/ question in this case was whether the CJEU could also rule on the validity of secondary EU law in the light of PIL/international treaties

2/ ECJ: yes but there are 3 conditions

Question 8

What are the 3 conditions laid down in Intertanko and which must be fulfilled for the ECJ to rule on the validity of secondary EU law in the light of PIL/international treaties?

Answer 8

1/ EU must be bound by those rules of IL (via accession or succession)

2/ the nature and broad logic of the international treaty must not preclude such review

3/ the international treaty’s provisions must appear to be unconditional and sufficiently precise

Question 9

What was conclusion on whether 3 conditions were fulfilled in Intertanko? (2)

Answer 9

1/ regarding Marpol, condition 1 was not fulfilled (no EU accession/succession)

2/ regarding UNCLOS, condition 2 was problematic (UNCLOS is about obligations btwn States, no rights for individuals)

Question 10

What are exceptions to the obligation to refer PQs on validity (link with Cilfit)? (3)

Answer 10

1/ acte clair: if obvious that EU legislation is valid, no obligation to refer

2/ acte éclairé: if same act has already been declared valid by ECJ, no obligation to refer

3/ acte éclairé: if same act has already been declared invalid by ECJ, no obligation to refer (bc erga omnes and ex tunc effect of declaration of invalidity)

Question 11

Which interpretation adopted in Cilfit judgment, referring to questions of interpretation, cannot be extended to questions relating to the validity of Community acts?

Answer 11

Acte clair: even if it is obvious that EU legislation is invalid, national courts must still refer PQ on validity

Question 12

Contribution of Zuckerfabrik case (1991)? (3)

Answer 12

1/ in the meantime btwn reference and judgment of the ECJ, national court may suspend the application/enforcement of national measures adopted for implementation of (probably) invalid EU act

2/ i.e. national courts may impose interim measures/grant interim relief until ECJ judgment

3/ there are however strict conditions for this

Question 13

What are the strict conditions laid down in Zuckerfabrik (1991)? (4)

Answer 13

1/ serious doubts as to the validity of the EU measure

2/ matter must be referred immediately + mention reasons

3/ urgency (i.e. threat of serious and irreparable damage to applicant)

4/ take due account of Union’s interests

Question 14

Contribution of Atlanta ruling (1995)? (3)

Answer 14

1/ added a condition to the Zuckerfabrik conditions (grant of interim relief pending ruling on PR)

2/ national court must respect previous decisions of the ECJ and GC on validity of same EU act

3/ interim measures may also take form of a positive measure

Question 15

Contribution of ABNA/Nevedi case (2005)? (2)

Answer 15

1/ administrative authorities may never suspend enforcement of EU law (i.e. grant interim relief)

2/ only national courts are entitled to determine whether conditions governing grant of interim relief have been satisfied

Question 16

What is an example of application of the Zuckerfabrik case law? (2)

Answer 16

1/ the Affish case in NL (1997)

2/ no factor in the EC Decision concerning protective measures with regard to fishery products originating in Japan affected its validity

Question 17

What are the disadvantages of Art. 267(b) as an extra remedy for private parties? (2)

Answer 17

1/ requires national implementing measures

2/ complete dependency on willingness of national court to refer Qs

Question 18

Contribution of the TWD case (1997)? (2)

Answer 18

1/ if it is clear that applicant could have brought a direct action for annulment but did not do so within the 2-month timeline

2/ national courts may not ask questions on the validity of the EU act the applicant could have attacked directly

Question 19

When is TWD rule usually relevant?

Answer 19

Individual decisions addressed to the applicant

Question 20

When does application of the TWD rule become problematic? (3)

Answer 20

1/ for PQs on validity of certain Regulations (e.g. anti-dumping Regulations) - cf Nachi Europe

2/ for individual decisions addressed to another person but where it is clear applicant is directly and individually concerned (e.g. State aid) - cf TWD

3/ for privileged applicants under Art. 263 (e.g. MS) - cf National Farmers’ Union

Question 21

For which PQs on validity is the TWD rule not problematic? (3)

Answer 21

1/ (sui generis) decision of the European Council - cf Pringle

2/ Regulations (except anti-dumping Regulations) - cf Accrington Beef

3/ Directives - cf Eurotunnel, Afton Chemical

Question 22

Contribution of Rewe/Comet case law (1976)? (3)

Answer 22

1/ pcple of national procedural autonomy

2/ each domestic legal system must designate which courts have jurisdiction and which are the procedural conditions governing actions intended to ensure protection of EU rights

3/ there are however 2 limitations to this freedom of MS

Question 23

Which are the 2 limitations to pcple of national procedural autonomy per Rewe/Comet (1976)?

Answer 23

1/ pcple of non-discrimination

2/ pcple of effectiveness

Question 24

What does pcple of non-discrimination entail?

Answer 24

National procedural conditions cannot be less favourable than those relating to similar actions of domestic nature

Question 25

What does pcple of effectiveness entail?

Answer 25

National procedural conditions and time-limits may not make it impossible in practice (i.e. very difficult) to exercise EU rights (cf Heylens case)