Article 267 Flashcards
Overview of Article 267
Overview:
The mechanism that allows the national court to set a question/series of questions to the CJEU for an answer.
Can ask for:
The interpretation of EU law.
The meaning of EU law in relation to a dispute.
NB:
Not an appeal.
Only concerns questions of EU law.
The impact of a reference may be to find national law is incompatible with EU law but the Court does not make that finding, it merely interprets Treaties.
Cannot strike down laws, that is a matter for the court making the reference.
The CJEU does not have jurisdiction to invalidate laws.
267 (1)
Can only make a reference when something relates to EU law.
If it does not concern A/B it cannot be asked.
267(2)
Court or Tribunal of a member state: The court must be a court of competent jurisdiction.
Tribunal: This may be an adjudicative body with the power to make decisions with binding effect on individuals.
May: Allows for discretion/flexibility on whether or not to make a reference.
It must be necessary to have an answer from the CJEU.
267(3)
Shall: If the court is the final court of appeal, there is a mandatory obligation to make a reference.
Funciton of Article 267
opinions state
Opinion 2/13
The keystone of the european judicial system
Craig and de burca
It is the jewel of rhe crown
Why is it viewed like this
It is central to principles of supremacy and direct effect.
Established significant fundamental rights concerns.
Has an important place within the EU constitutional order.
The objective of article 267
state case
Case c 284/16
Case c 284/16
Securing uniform interpretation of EU law, thereby serving to ensure its consistency,
Creates dialogue between member states and the Eu
Supremacy and 267
if no unifrom application it would undermine the supremacy of Eu law
Supremacy allows for harmonisation and uniformity of EU law
267 allows CJEy to reiterate and reinforce rights conferred to citizens through directives
DIECISIONS ARE DIRECTED TO ALL MEMBER STATES
History of Article 267
Treaty of Lisbon: Gives GC jurisdiction to give rulings on specific areas.
Nice: Suggested bifurcayted method
aim: To relieve burden fromcjeu
Impractical cuc still right of appeal from decisions of GC to CJEU- see comission v Apple
Alos would mena that some cases were deemed as more important to be sent straight to ECJ
Suggestions of cases to be for GC
VAt/customs claims
Passenger airline compensation claims
Greenhouse gas emission claims
NEW ADDITION 2024: GDPR and Data retention claims due to recent influx
Who can make a reference?
Court/ tribunal of member state
Who receives the reference?
ECJ usually but sometimes GC
When can reference be made
National court: When interpretation required to answer a q but can caveat theis by not choosing to rule on EU law
May: At their own volition choose to make a reference
Court of final alppeal with no judicial remedy: Must refer the case to the CJEU_ obligatory
Article 267(3):
what and why
obligation to make a reference if
Final court of appeal subject to no juciail remedy
SC where final decison
Aim to make sure that superior court dont interpret the EU law wrongly so as to undermine harmony of EU law
What can be referred
q on the interpretation of treaty
Q on interpretation/validity of acts/bodies insitutions of union,ie directives
What cannot be referred?
Family law matters
Substantive criminal law disputes
CJEU cannot make findings/invalidate laws
State case
DRI
DRI
State issue with it
Result: The directive was invalidated.
The CJEU did not strike down the Irish legislation, that was the job for the Irish courts.
Further reform to leg was made but murray report said that total overhaul needed
Issue when CJEU cant strike a law down because national courts can then just try change it but still not effective.
Who can make a reference?
Court or tribunal
NB: Not what member state says is court/ tribunal
Determimed by criteria
Criteria of CJEU
The body is established by law
Through legislation/has a constitutional basis.
Is permanent
Does not require legislative renewal.
Jurisdiction is compulsory or voluntary
Compulsory: HC/SC
Voluntary: Arbitral bodies
The procedure is inter partes
Between 2 individuals/bodies.
Whether the body applies rules of law
Whether the body is independent
Dot need to meet all criteria
NAme cases for who can refer
Broekman
Isle of man
Kaefer v France
Ascendi
Broekman
Facts: Concerned a dispute between 2 parties on the recognition of a medical qualification.
The applicant was qualified as a GP in Belgium and was seeking to have his qualification recognised in the Netherlands.
The board refused to recognise his qualifications on the basis that he had not completed the required training.
He appeals to the committee of general medicine.
Issue: Whether the Dutch Appeals Committee for General Medicine was a court/tribunal under 267?
Held:
CJEU considered a number of issues:
Is it a body established by law?
The Royal Society is not governed by statute/recognised by the Constitution.
It is referred to in other pieces of legislation and operates under the cooperation and consent of the state.
Lacks statutory basis: Recognised but not regulated by law.
However, the state relies on and expects the Society to perform its function.
The Society has internal rules on procedure/appeals and determines who can practice in some jurisdictions.
Result: It is a formal system and is a body recognised by law.
Possibility of appeal:
Although it is not labelled as a court/tribunal, there exists a right of appeal to the national court.
(Not provided for in statute, but there is nothing to prevent an applicant from making an appeal before the courts of the Netherlands).
Issue: Can the society meet the other criteria?
The dispute is inter parte to some extent.
Adversarial process: The jurisdiction of society is compulsory as if one wants to practice medicine they have no other choice than to get their qualification recognised by them.
NB: This body determines issues of real significance for individual citizens and is involved in the enforcement and recognition of EU rights.
Body integrated into the judicial system: makes legally binding decisions.
Key Takeaways:
Emphasis that a particular body doesn’t need to have an exhaustive basis, sufficient that it’s recognised in law.
Compulsory jurisdiction is important: There must be no other place to go.
Compulsory jurisdiction also applies to bodies applying fundamental freedoms of EU law.
Conclusion:
Satisfies a sufficient number of criteria to be recognised as a court/tribunal for the purposes of 267.
The body determines fundamental rights like freedom of movement as well as whether a qualification is recognised.
Isle of mann
acts: Concerned a piece of social welfare legislation that was introduced and whether it complied with EU law rights.
A preliminary reference was sent to the CJEU, but there was a dispute around the Isle of Mann’s membership status.
The Isle of Mann was not part of the UK nor was it a colony.
British protectorate: Had its own legislature/courts but the Secretary of State for foreign affairs represented the Isle of Mann International affairs.
Issue: Whether a court of the Isle of Mann was a court or tribunal of a Member State
Held: The Isle of Mann is a jurisdiction that falls under the protection of the UK.
Section 2(1) of the EC Isle of Mann Act: EC Treaties were to have force in law to the extent necessary to enable its relationship with the United Kingdom.
Section 3(1): Envisioned preliminary references.
Kaefer v France
Facts: Concerned applicants who were EU citizens who sought residence in Polynesian territory.
Both were denied and sought to make a reference from the equivalent of a Polynesian HC.
Issue: Whether a court of the French Republic in Polynesia could make a preliminary ruling to the CJEU.
Held: Part IV of the EEC Treaty (Art 136) empowers institutions of the Community to lay down provisions relating to overseas territories and countries.
Conclusion: There was jurisdiction as France recognised that the Polynesian tribunal was a French court.
Ascendi
Facts: Concerned a dispute between the parties before the Portugese Tax and Customs Authority.
Issue: Whether the PTCA could send a preliminary reference as the authority is not permanently sitting, ie. The body is formed following the dispute.
Argument: The panel is waiting to be crystallised following a dispute therefore, it could be permanent.
Counter: Multiple temporary bodies are being constituted for the dispute.
Held: No room existed where there was a permanent sitting.
The authority itself is permanent and provided for in law.
The court is concerned with the permanence of the institution itself and not the permanence of the individual members.
Compared to an arbitral tribunal: Some tribunals are formed solely for that arbitration and dissolve afterwards.
This referring body:
Was established by law.
Was included in the list of national courts in the text of the constitution
Was permanent (not all arbitral bodies meet this criteria)
The arbitral activities were used as an alternative means of judicial resolution in tax disputes.
Compulsory.
Independent: Both its members and the body
Conclusion: Yes, a court/tribunal for the purposes of Article 267.
Who must make a reference: Article 267(3)
Crucial criteria
Courts where their decisions have no judicial remedy under national law, ie. The court of final appeal.
The answer to the question referred must be necessary in order to resolve the dispute.
2 Theories
Abstract
COncrete
State cases on who must refer
Lofin makin v Minister for justice
Lyckenberg
Cartesio
Lofin makin v Minister for justice
Issue: Whether the court is obliged to make a reference on the basis that there was potential for an appeal.
The appeal required that Cooke J grant leave to appeal.
Held: Cooke J was entitled to refuse a grant of leave.
In those circumstances, he could choose to be the court of final appeal.
Thus, reserving an obligation to refer a question.
Lyckenberg
Facts: The applicant had been convicted of a criminal offence (smuggling rice) before the court of appeal in Sweden.
That court was not empowered to send cases on appeal to the Supreme Court without the approval of the superior court.
Issue: Did this need for approval from the Supreme Court mean that the Court of Appeal was, in effect, a court against whose decisions there was no judicial remedy?
Held: Decisions of a national appellate court which can be challenged by the parties before a supreme court are not decisions of a ‘court or tribunal of a Member State against whose decisions there is no judicial remedy under national law’ .
Where the decisions of a court can be appealed, there is no obligation to refer, even where that appeal is subject to conditions.
Cartesio
Facts: Concerned an applicant who had registered a Hungarian address for a company.
Sought to change it to a non-Hungarian address.
This was refused by the company’s registration office.
It was argued that it was a breach of EU law under Articles 49 and 54 TFEU.
However, the decisions of the CRO only had an extraordinary right of appeal where it was in the public interest.
CRO was effectively the final court of appeal in this instance because the case didn’t fir the criteria to be referred to higher courts.
Issue: Was the CRO a court of final appeal as the right of further appeal was extraordinary?
Held: There is clearly an appellate court operating above this court.
Therefore, there is no obligation to refer as it was not a court of final appeal, despite there being certain criteria that have to be met to be granted a right of appeal.
Reaffirmed the approach in Lyckeskog.
Criticism: This approach appears to be counter-productive.
What if a lower court chooses to refer, can SC reverse that decision
State case
cartesio
cartesio
Issue: Whether it was permissible for an appeal court to overturn and thus withdraw a preliminary reference already made by a lower court.
Held: No.
It is up to the trial court to decide to make a reference and the ECJ itself to verify whether the reference is necessary.
Higher courts must abide by the decision made to refer to ensure clarity and legal certainty:
This can only be revoked/amended by the referring court.
Can a court on its own volition make a reference
state cases
Peterborek
Getin Noble
Peterborek
Facts: The Brussels CoA had referred a question in respect to tax rates.
The issue had not been brought up initially and was only raised on appeal.
National procedural rules prohibited the court from making a reference on its own volition to the CJEU.
Issue: Should EU law be interpreted to mean that a national court must set aside or otherwise disregard a national rule which prevents it from referring a question to the CJEU of its own volition
Held: A national procedural rule preventing a national court from raising a matter for reference of its own volition was contrary to EU law, given the necessity of protecting legal certainty.
Getin Noble
Facts: Concerned an allegation that a preliminary reference shouldn’t be accepted because it was tainted.
A member of the judiciary in Poland had made the reference and his appointment was made under a process that did not guarantee judicial independence.
Issue: Because the judge was not properly appointed, could the court be deemed invalid and thus not be recognised as a court under Article 267?
Held: The CJEU are not looking at the individual, they are looking at the institution
Focused on the independence of the adjudicative institution.
Can examine the independence of an individual only where there is evidence of bias.
The Limits to Preliminary References.
- If the question has already been answered
- If the Answer is obvious- CILFIT
- If the question has already been answered
Name cases
De Costa
ICC
De Costa
Joined Cases C-28-30/62 Da Costa
Facts: The facts and questions that were at issue were identical to Van Gend.
Issue: Does the court of final appeal still have an obligation to refer?
Held: There is an obligation to refer where the court is a final court of appeal against whose decision there is no further appeal.
But sending a question that has already been answered to the CJEU lacks purpose and substance.
The national court can refer the matter if there some new factor that differentiates it from a previous case.
If it refers with no differentiation, the CJEU will just restate the existing decision.
Conclusion: There is no obligation to refer where the question and issues are the same.
ICC
Facts: Concerned a reference made in relation to a regulation.
The specific issue under the regulation had already been considered by the CJEU.
Issue: Whether the courts of other member states can still make a reference.
Held: Yes.
There may be circumstances where member states may have different legal systems, ie. common law/civil law.
Decisions are addressed to the Member State referring, but they are applicable to all Member States, so the CJEU could deem the reference inadmissible/restate the law.
If the answer is so obvioius
State case
CILFIT
CILFIT
Case C-238/81 CILFIT
Facts: Concerned a dispute surrounding a wool importer that was unsuccessful.
The importer brought the matter to appeal to the highest appellate court and demanded that a reference be made.
The respondent argued that this was not necessary as the answer was so obvious so as to remove the need for a reference.
Held: Created the doctrine of Acte Clair: If a provision of EU law is widely acceptable, there is no obligation to refer.
The mere fact a party alleges that there is a question does not result in an obligation to refer.
It is within the court’s discretion.
Where there is an obvious answer from previous decisions then there is no obligation, even where questions are not strictly identical.
The Cilfit Test:
The correct application of EU law is so obvious so as to leave no room for reasonable doubt.
The national court/tribunal must be convinced the matter is equally obvious to the other member courts.
The matter must be equally obvious to the CJEU.
Criticism of cilfit
Subjectiveness:
The test is extremely subjective and broad.
There is no indication as to whether ‘doubt’ is subjective/objective.
Recourse to other Member states:
No guidance on whether all member states must agree/if there should be a majority.
Scholar criticism of CILFit
M Broberg and N Fenger:
Concerned about fragmentation: The courts are effectively tasked with making determinations on their own accord which will undermine the union.
Article 267’s purpose is to act as a dialogue mechanism between the CJEU and the member state and CILFIT essentially removes the need for dialogue.
Arnold:
Believes that the doctrine gives member states plausible deniability to avoid making references by claiming that the interpretation of EU law was so obvious and clear.
State cases follwing CILFIT
Intermodal
Van Dijk
De silva
Feench association
Intermodal
Facts: Concerned a party that had invoked a decision by the customs authority in relation to a product which they claimed was similar to another product.
Issue: Whether a reference should be made where a similar decision has already been made such that the answer is so obvious.
Held: The court is considered to harbour reasonable doubt when it has a different view than the authority in another member state.
Issue: The authorities in Belgium and the Netherlands had different views on the resolution.
Held: It was obvious to other members of the EU so the CILFIT criteria were satisfied.
Criticism: 2 member states had differing opinions on the interpretation/application of EU law on the matter yet CILFIT was still satisfied.
Van dijjk
Facts: Concerned a lower court in the same jurisdiction that had submitted a request for a preliminary reference.
The SC was of the opinion that the question did not need a reference because the answer was so obvious.
Held: The existence of an interpretive doubt on the part of the lower court doesn’t preclude the existence of Act Clair for the final court in the same jurisdiction.
Controversy: Contradictory as the lower courts see a need for reference, but SC can declare Acte Clair.
De silva4
Facts: The SC of Portugal claimed that they had a clear interpretation of what a transfer of business meant.
However, another tribunal in Portugal and a court in another EU member state interpreted it differently.
Issue: Does three different interpretations of the same issue create reasonable doubt?
Held: The SC’s certainty prevails.
If the final instance decision maker believes that the answer is obvious, then the lower courts demanding a reference are wrong.
Criticism: Allows for certainty on the part of the senior appellant court and uncertainty on the lower court.
Association france3
Held: The court of the last instance envisaged exceptional cases where the CILFIT doctrine will be set aside so that a stricter obligation to refer be implemented.
Summary of issues of cilfit
Hard to reconcile these interpretations of the doctrine with each other.
None of them apply the CILFIT criteria uniformly.
Still remains doubt on whether reasonable doubt should be assessed subjectively or objectively.
Note: Van Dijk and Ferreira are seen as opposed cases.
What case attempted to fix the CILFIT criteria
Consorzio
COnsorzio
Facts: Concerned a dispute about cleaning service contracts.
It was argued that if certain procedure was followed correctly, a different cleaning company would have been chosen.
The claim was unsuccessful at the court of first instance, and the matter was referred on appeal to the CJEU.
Issue: Whether a broad range of questions of compliance with national law and EU provisions could comply with each other.
Whether the court of final instance must refer all these questions where it is asserted that some questions can be answered without references.
Held: Broad lists of questions should be inadmissible.
The court must refer discrete questions with attention to the requirements for content under Article 267, ie. The question must be genuinely necessary in order to resolve the dispute.
This means that in addition to providing the questions the court should provide:
A summary of the subject matter of the dispute, the relevant findings of fact and those facts leading to the questions referred.
The relevant national provisions and details of relevant case law.
Statement of reasons for the request.
Who commented on CILFIT
AG Bobek
AG bobek comment
Stated that from the beginning, there was a complete lack of clarity on how CILFIT should be applied.
There contains no clarity on whether there should be a subjective or objective approach taken in assessing reasonable doubt.
No clarity as to whether reasonable doubt in relation to the correct application of EU law in that
particular case or in general.
No indication of whether divergence in case law is sufficient to constitute reasonable doubt.
The confusion leads to the criteria being applied differently among member states.
3 points he comments on
The Hoffman-Laroche-CILFIT Mismatch:
Feasibility
goes against principles of human rights law
The Hoffman-Laroche-CILFIT Mismatch:
The logic of the test and the exceptions it allows doesn’t correspond with the way in which we determine if a question is necessary for the resolution under the Article 267 procedure.
Hoffman emphasised a structural, objective duty to refer questions to the CJEU to ensure uniform interpretation of EU law across Member States.
CILFIT introduced subjective exceptions allowing national courts to avoid referral if they find the answer obvious (Acte Clair).
This shift from an objective duty to subjective discretion creates a logical inconsistency in the EU’s preliminary ruling system.
Feasibility
The CILFIT criteria are flawed whether seen as a checklist or a toolkit:
Checklist: The courts can never fully meet all conditions, making it impractical.
Toolkit: Judges pick which rules to apply, leading to inconsistent and arbitrary decisions.
Either way, the Acte Clair doctrine is difficult to enforce fairly.
goes against principles of human rights law
There is no EU legal remedy if a party believes their case should have been referred to the CJEU under Article 267 TFEU.
The CJEU holds that parties do not have an automatic right to a referral.
However, the ECtHR suggests that if the criteria for referral are met, parties may have a right to it as part of a fair trial.
This creates tension between the two courts’ interpretations.
His proposal
Must re-affirm purpose and the scope of the duty to refer under Article 267(3).
Emphasise that if it is a court of final appeal, they have an obligation to make a reference.
CILFIT exceptions should be limited to ensure that Article 267 is not undermined.
Remember the aims of 267:
To harmonise EU law and ensure that it is uniformly applicable to all member states.
Bobek Test:
What shall be achieved is uniform interpretation, not correct application.
The focus shall be on ‘a body of case law’, not on the correctness of the outcome in every single case.
Criticism: His proposal itself is not clear and all previous criticisms apply.
Accepting a reference
The CJEU is not obliged to accept a reference.
Can refuse on the basis that the question has already been answered.
Can refer the referring court to a particular case.
Summary Decision: Can decline to hold a hearing and produce a written decision based on previous decisions it has rendered already.
Initially the courts have taken a broad approach to accepting references
State case
Firma C Schwarze
Firma C Schwarze
Facts: The questions referred to looked to be concerned with the interpretation of the Treaty.
The respondent Member State claimed they called for a determination of the validity of EU Acts.
Broad questions on a range of EU law instruments.
Held: Although some questions were too broad, others were admissible on the basis that the courts interpreted them in a manner that they were necessary.
The court saw an obligation to accept the questions to ensure consistent interpretation of EU law.
Factors to note
The CJEU does not have unlimited patience: It will not always adopt a charitable approach to the referring courts.
CJEU is not concerned with the motivation of the parties on why the reference is being made, ie. It does not care if the parties are using the preliminary reference to gain a strategic advantage through delay.
NB: The CJEU is concerned with the admissibility of the substance of the questions.
However, a national court can determine that a party is only mandating referral on the basis that they are attempting to gain a strategic advantage and will opt to not send a reference if they find that the question is not necessary to resolve the dispute.
The Court will not concern itself with the reasons a reference was made:
State case
Costa
Cossta
It is ultimately for the CJEU to determine whether a question is admissible:
State case
Foglia
Foglia
Facts: Concerned an assertion that the national courts have equal power to determine admissibility.
Held: The CJEU alone determines inadmissibility.
The national court determines if a reference should be made but once a reference has been made, only the CJEU can determine its admissibility.
Who comments on Foglia and what to they say
Craig and Deburca
The relationship between the courts is no longer separate but equal.
Cases where the Court has declined References
- Hypothetical/moot cases
- q is unclear/too broad
- Nice to know but not necessary
Hypotherical/moot
Where there is no longer any live issue between the parties.
Where the issues raised are not relevant to the resolution of the dispute.
Where the issue is hypothetical and the case has been settled.
NB: The CJEU distinguishes between ‘necessary to resolve’ and ‘nice to know’.
Justification
Waste of judicial resources:
The CJEU does not have an unlimited number of judges.
The CJEU deals with other issues that are not preliminary references.
Standing:
Who are the appropriate parties to the dispute?
How to satisfy the requirements for ‘necessity’?
If the case is hypothetical/moot: It does not need to be resolved at all.
Contrary to legal certainty as may be unable to pre-empt facts of the eventual scenario:
It can lead to precedent which can have problematic consequences on binding future disputes where test cases are being used with no appropriate facts.
Not a means for getting an opinion: not an advisory right.
Unclear state case
voor woonen
Wan woonen
Issue: Whether financial support provided to certain social services must be limited in a manner to prevent accusations of state aid.
Held: There is a rebuttable presumption of relevance but the court must set out the factual and legislative context or at the very least explain the facts which have occasioned the reference and the precise reasons for its uncertainty about the application/interpretation of EU law.
Cannot send general queries to the court of justice: must justify the questions.
- Nice to know but not necessary
state case
Corsica Ferries
Corsica Ferries
Facts: The complainants were operating a ferry service between Genoa and Corsica.
They flew the Panamanian flag and were subject to different tax treatment.
They claimed they were subject to discriminatory treatment contrary to the Treaties and commenced summary, ex parte proceedings before the Genovese tribunal seeking reimbursement of overpaid tax
Issue: Because it was a summary, ex-parte matter, was the reference necessary to resolve the dispute?
Held: Some questions could be referred and answered while some could not.
Because it was a summary hearing, the issues hadn’t been fully ventilated, so there was no possible determination of necessity.
Neither the summary nor ex parte nature deprives the national court of their ability to refer.
Conclusion: Admitted 4 and deemed the other 4 inadmissible.
NB: Did not reject all the questions: The CJEU could sever the inadmissible ones and answer the remainder.
