Art 267 TFEU: The Preliminary Reference Procedure

Question 1

The Preliminary Reference Procedure

Answer 1

Art 267 TFEU

Question 2

Cura Anlagen

Answer 2

Art 267 TFEU: Where CJEU won’t answer a question

1. Question has been deliberately engineered by the parties
2. Question is wholly hypothetical
3. CJEU does not have before it a full account of the facts necessary to make a ruling

Question 3

Costa v ENEL

Answer 3

Art 267 TFEU

The court can extract from an imperfectly worded question the elements which alone pertain to the interpretation of the treaty

Question 4

Dzodzi v Belgium

Answer 4

Art 267 TFEU: The Subject matter of the reference

CJEU will consider a question that is related to a domestic law if it refers to an EU principle

Question 5

Foto-Frost

Answer 5

Art 267 TFEU: The Subject matter of the reference

No national court has the power to unilaterally rule that an act of an EU institution is invalid- this can only be done on referral

Question 6

Leur-Blom

Answer 6

Art 267 TFEU: The Subject matter of the reference

Court should only rule in cases where the context is one contemplated by community rule,as Art 267 guarantees the relevance of the court’s ruling to the determination of the dispute

Question 7

Broeckmeulen

Answer 7

Art 267 TFEU: Competence to refer

CJ has looked at whether the referring body has the form of a court and makes legally binding decisions

Question 8

CILFIT v Ministry of Health

Answer 8

Art 267 TFEU: Obligation to refer

Court does not have to refer a question when:
1. The answer will not affect the outcome of the case
2. The matter has already been decided by the CJEU
Implies prior case law binds national courts- soft doctrine of precedent
3. When the issue is so obvious as to leave no room for reasonable doubt
Test: would the question be obvious to the courts of other MSs and the CJEU

Question 9

Cartesio Oktato es Szolgaltato bt

Answer 9

Art 267 TFEU: Interplay between higher and lower courts

Where a decision is made to refer by a lower court, and this decision os subsequently overturned by a higher domestic court, the lower court is not bound by this decision
Would be undermining the right of the lower court to make a referral

Question 10

Kelly

Answer 10

Art 267 TFEU: Interplay between higher and lower courts

Once referral has occurred national courts must delay decisions and wait for the CJEU to rule before any superior ruling is made