Art 267 Preliminary Rulings

Question 0

Broekmeulen

Cartesio

Answer 0

It can be problematic to decide whether the body is a court or tribunal, but it must be making decisions of a judicial nature - administrative decisions with no legal dimension are not included - cf. B however that it must be within the MS

Question 1

Foto-Frost

Answer 1

Art 267 concerns two types of reference, 1. Interpretation of the Treaty and 2. References concerning the acts of institutions, bodies, offices or agencies of the EU

Question 2

Lyckeskog

Answer 2

The concrete theory of courts/tribunals which are caught by Art. 267(3) was confirmed as being whether there is no appeal in the type of case in question, not generally as there being no appeal from the court

Question 3

Carteiso (Art.267(3))

Answer 3

Where there is a restricted right to appeal on a point of law, this does not mean there is no appeal and there is therefore a discretion as to whether apply for a preliminary ref under Art 267(2)

Question 4

Carteiso (lower courts)

Answer 4

It is possible for a lower court to make a preliminary reference to the ECJ even when the higher court has rejected an appeal

Question 5

Peterbroeck

Asturcom

Answer 5

In P it was said that procedural rules must give way where they prevent a preliminary ref
Softened somewhat in A but the ECJ may still impose a duty -

Question 6

Da Costa

Answer 6

This essentially established a form of precedent - national courts can rule on issues already ruled upon but they must present a new factor which was not considered

Question 7

Lafinicio

Answer 7

The proceedings do not have to be identical, provided that the point of law is the same then the national court may rely on the ruling made by the ECJ - thereby obviating the need for a reference

Question 8

ICC

Answer 8

The ECJ has been more forthcoming where there has been an alleged breach of the Treaty RE references, but where the validity of EU law has been brought into question, it has been more forceful in directing MSs to precedent

Question 9

Foto-Frost

Atlanta

Answer 9

National courts cannot find an EU norm invalid themselves
Interim relief can be granted but only where there are serious doubts as to the validity of the provision and there must have been a reference made to the ECJ - the IR must be necessary to prevent irreparable damage to the applicant - must also respect ECJ’s findings

Question 10

Kempter

Answer 10

Legal certainty and ECJ decisions, if a ‘final decision’ is later proven incorrect then the national courts may reopen it but it is not obliged to do so

Question 11

CILFIT

Intermodal

Answer 11

The acte clair doctrine can be enforced provided that the answer is so obvious as to leave no reasonable doubt and that that result is also shared with other MSs - if that is satisfied then national courts may take it upon themselves to resolve it
ECJ has declined to extend CILFIT

Question 12

Bulmer

Answer 12

The decision must not be necessary, it must be necessary for the court to give judgment – here Denning refused to make a reference but this was criticised

Question 13

Samex

Answer 13

Indicative of the current approach of the UK courts, which are more ready to refer, in contrast to Bulmer - Thomas Bingham MR

Question 14

Schwarze

Answer 14

Initially, the ECJ was very prepared to pass judgment on references where possible, and it would even reformulate improperly framed references so as to correct Treaty interpretation

Question 15

Foglia

Foglia II

Answer 15

Notwithstanding the early years it is clear that the ECJ now considers itself to have the ultimate authority over whether a reference is warranted or not
This was emphasised when the reference was made once more speaking of hypothetical proceedings

Question 16

Corsica Ferries

Answer 16

The ECJ may decline judgment if it is not relevant to the resolution of the dispute

Question 17

Roquette Freres

Answer 17

The ECJ will not give judgment where a reference is not articulated sufficiently clearly but this should be contrasted with an imperfectly formulated reference where they can tease out the real question

Question 18

Telemarsicabruzzo

Answer 18

The ECJ needs sufficient factual basis in order to be able to apply the relevant legal rules

Question 19

Filipiak

Answer 19

The court has asserted its authority on declining to give judgment but this will only be done where it is obvious that it is manifestly inapplicable to the facts or action of the case

Question 20

Van Gend en Loos

Answer 20

Litigants have argued that the ECJ should decline a ruling where the court is seeking an application instead of an interpretation, but the ECJ has not been deterred by this -

Question 21

Marleasing

Answer 21

Highlights the detailed nature of the judgments given under Art 267 and how these can be indistinguishable from an application of the Treaty as opposed to interpretation – further control by ECJ

Question 22

Kobler, Traghetti

Answer 22

There are other buffers for the acte clair doctrine outside of CILFIT such as an enforcement action under Art 258