Art 267

Question 0

Is the question raised by a ‘court or tribunal’?

Answer 0

Dorsch Consult : the CJEU will make an assessment, taking into account whether

• the institution was established by law
• is permanent
• it’s jurisdiction is compulsory
• is its procedure binding inter parties or in everyone?
• does it apply the rule of law
• is it independent?

Broekmeulen : a Medical Appeals a Committee set up by a Medicak Association was a court
Nordsee : an arbitrator was not court because no sufficient link so any one member state
Paul Miles v European Schools Board : ESB had no sufficient link to any one member state

Question 1

Is there a ‘question’?

Answer 1

Art 267(1)
Interpretation and validity of secondary laws
Interpretation of treaty

Leur-Bloom : can include questions on national laws that are similar to an EU law
Agafitei and others : however the similar EU law must have direct effect

Drodzi v Belgium : generally, for he court to decide if a reference is necessary

Question 2

Is an answer necessary to give judgment?

Answer 2

Fogila v Novello (no 2) : it is for the CJEU to decide on whether a reference is needed, not the national court

CJEU will refuse to rule where

• the national case is manufactured, Fogila v Novello no.1
• the question was not raised by a litigant, Meilicke
• the facts were not clearly presented, Telemariscabruzzo

However, in VTB-VAB, the CJEU ruled on a directive prior to implementation date

Question 3

Does the national court have a discretion or duty to refer?

Answer 3

Rheinmuehlen : courts have a broad discretion
Hoffman-La Roche v Centrafarm : however, a court of last instance must refer

Special circumstances

1) declaring an EU law invalid - always a duty to refer
- Foto Fristo : national courts are not allowed to declare an EU secondary law invalid

2) acte claire - general discretion
- where a question raised is “so obvious as to leave no scope for any reasonable doubt”, the court does not have to refer
- CILFIT criteria : the national court must take into account
CJEU and all national courts’ perspectives
All MS language versions of the provision
Considering concepts peculiar to EU law
Different context and meanings in different legal systems

2) existing case law - do not refer
- Da Costa : in these cases, the CJEU will respond by reasoned order only

Question 4

Is interim relief available?

Answer 4

Interim relief is subject to conditions laid down in Atlanta,

• serious doubt about validity of EU law
• risk of serious and irreparable damage to the claimant
• no overriding EU interest at stake

Question 5

Effect of a preliminary reference?

Answer 5

National courts must apply national law in line with EU law

National Pensions office - national courts must set aside any conflicting national laws “without having to request or await their prior removal by the legislature”

Question 6

Ruling precluded on basis of art 263?

Answer 6

If a claimant would have standing under art.263 but failed to do so within the time limit, they would be precluded from making a preliminary reference

TWD case : claimant excluded

The Queen v intervention Board for Agriculture, ex p Accrungton Beef Co : the applicants standing under 263 was not clear, so preliminary reference allowed

Wiljo NV v Belgian State : ability to challenge under 263 was not known within time limit, so preliminary reference allowed