A267 PRELIMINARY REFRENCE PROCEDURE

Question 1

What does A267 allow courts/tribunals to do?

Answer 1

Ask questions of EU law to the ECJ

Question 2

Which cases determined who can ask questions?

Answer 2

BROEKMEULLEN 1981

NORDSEE 1982

Question 3

Case facts BROEKMEULLEN 1981

Answer 3

Set out requirements for court/tribunal to be able to send questions
Must be
(i) Established by law
(ii) Permanent
(iii) Compulsory jurisdiction (decisions are final and enforceable)
(iv) Inter parties (between parties)
(v) Applies rules of law (integrated into MS legal system)

Question 4

Case facts NORDSEE 1982

Answer 4

Established that the court must also be public

Question 5

Which cases state when a court SHOULD refer a question of law?

Answer 5

ISE 1993

GASPARINI 2006

Question 6

ISE 1993

Answer 6

• Refering the question of law must be crucial to the decision
• Must consider that EU law must be consistently applied throughout EU
• Considers the advantages of using ECJ -> they are experts, no higher place to ask, ultimate arbitrators on questions of interpretation of EU law

Question 7

GASPARINI 2006

Answer 7

Questions must be phrased clearly
Not hypothetical
Question relates to facts of case at hand

Question 8

When MUST court/tribunal refer?

Answer 8

When there is no right to appeal (from the Article itself)

Question 9

Two conceptions of ‘no right to appeal’?

Answer 9

ABSTRACT

CONCRETE

Question 10

What is the abstract theory of ‘no right to appeal’?

Answer 10

When there is no higher court to appeal to -> no right to appeal at all
Meant not many cases referred

Question 11

What is the concrete theory of ‘right to appeal’?

Answer 11

No right to appeal in the particular case
E.g. COSTA 1964
- Amount of money in question was very small (equivalent to a few £) -> would never reach a higher court on appeal as it wasn;t important enough
- Must be referred

Question 12

When should a court/tribunal NOT refer?

Answer 12

Under the ACTE CLAIR principle -> the answer is either obvious
-> CILFIT 1982
OR
The question has been answered before
-> COSTA 1964 (q already answered in VGEL)

Question 13

Case that shows courts must be careful about ACTE CLAIR principle

Answer 13

HENN & DERBY 1978

Question 14

HENN & DERBY 1978

Answer 14

• CoA thought answer was obvious and made decision on the basis
• Appealed to HoL (now SC) who thought there were grounds to refer question of law to ECJ
• ECJ ruled interpretation of law was entirely different to original conception -> changed entire judgement

Question 15

Which court makes the final decision on the case?

Answer 15

National courts on application of ECJ guidance on the law

Question 16

Which case set ECJ boundaries as very much not in the final judgement?

Answer 16

ARSENAL FC v REED 2001

Question 17

ARSENAL FC v REED 2001

Answer 17

• ECJ overstepped the mark by giving a direct judgement on the case
• At first UK courts did not agree with decision and challenged it
• Eventually they did agree on interpretation of the law, but the precedent was set the the ECJ must not get directly involved