Article 267, 258 and 263 Flashcards
Unlike the US constitutional order, the EU has not developed an extensive system of federal courts designed to apply Union law; what instead is the Union based on?
a system of cooperative federalism; that all national courts are entitled and obliged to apply European law to disputes before them
What are the 4 steps of a preliminary reference under Art 267 TFEU?
- The national court asks the Court of Justice for assistance in interpreting EU law
2) The Court of Justice will provide a general interpretation of EU law: it will not solve the case
3) The national court is responsible for applying this interpretation to the facts of the case and to deliver the final judgment
4) National courts are obliged to follow the interpretation of EU law given by the Court of Justice: occasional national resistance
What does the Art 267 provision provide?
a constitutional nexus between the central and decentralised adjudication of European law
The court cannot decide whether a national law violates the Treaties however there are blurred lines between interpretation and application. This was considered in the Sunday trading cases in whichh the court found that national rules governing opening hours could be justified on public interest grounds but asked national courts as to whether the effects of such national rules exceed what is necessary to achieve the aim. However what did this proportionality test lead to?
fragmentation in that different national courts decided differently
The court cannot decide whether a national law violates the Treaties however there are blurred lines between interpretation and application. This was considered in the Sunday trading cases in whichh the court found that national rules governing opening hours could be justified on public interest grounds but asked national courts as to whether the effects of such national rules exceed what is necessary to achieve the aim. In which case did the Court interfere with?
Stoke en trent
The court cannot decide whether a national law violates the Treaties however there are blurred lines between interpretation and application. This was considered in the Sunday trading cases in whichh the court found that national rules governing opening hours could be justified on public interest grounds but asked national courts as to whether the effects of such national rules exceed what is necessary to achieve the aim.
How did the Court interfere and how did they justify this in Stoke en Trent ?
the Court centrally applied the proportionality test and held that the British Sunday trading rules were not disproportionate interferences with the internal market,
the ECJ crossed the line between interpretation and application of the Treaties but
justified its interference in application of the Treaties in Stoke-en-Trent when they considered that it had all the information necessary to rule on the question of proportionality and so had to do so in order to allow national courts to assess their compatibility with European law in a uniform manner as such an assessment cannot be allowed to vary among individual court
what does Art 267(2) define?
Article 267 (2) TFEU defines the competence of the national courts to ask preliminary questions this allows any court or tribual of a member state to ask a european law question that is necessary to enable it to give judgement
The treaties provide no positive definition of what is a national court or tribunal and so the Court has provided a European definition which is extremely wide in which case?
Dorsch Consult
The treaties provide no positive definition of what is a national court or tribunal and so the Court has provided a European definition which is extremely wide in Dorsch Consuit.
What are the 6 noted in this case?
1) whether the body is established by law
2) whether it is permanent
3) where its jurisdiction is compulsory
4) where its procedure is inter partes
5) whether it applies rules of law and
6) whether it is independent
in which case is the breadth of this definition in Dorsch Consult is illustrated in?
Brockmeulen
Courts of last instance ____ make a preliminary reference to the COJ if the answer to a question of EU law if it is necessary to give judgement.
shall
In very exceptional circumstances the Court will reject a request for a preliminary ruling as in which case?
Fogila v Novello
In very exceptional circumstances the Court will reject a request for a preliminary ruling as in Fogila v Novello.
Discuss case
the Court insisted that questions referred to it must be raised in genuine dispute.
In a sequel to this case, the Court explained that the duty designed under Art 267 is not to deliver advisory opinions on general or hypothetical questions
The general rule under Art 267(3) is that courts of last instance have to make a reference if there is a question about the correct interpretation of EU law
However in which care did the COJ develop two exceptions; acte clair and acte éclaire
CILFIT
Where an appeal is procedurally possible,the obligation under Article 267 (3) TFEU will not apply
What case was this held in?
Lykeskog
Where an appeal is procedurally possible,the obligation under Article 267 (3) TFEU will not apply. This was held in Lykesog. Discuss case
decisions of a national appellate court can be challenged by the parties before a supreme court are therefore not decisions of a court or tribunal against whose decision there is no judicial remedy under national law
decisions of a national appellate court can be challenged by the parties before a supreme court are therefore not decisions of a court or tribunal against whose decision there is no judicial remedy under national law
in Lykesog. Discuss case
What has the Union legal order imported in order to counter the textual argument that Art 267(3) treats national courts as perpetual children as are forbidden from interpreting European law
a French legal doctrine under the name of acte clair
What does the Doctrine of Acte Clair mean?
as an exception to Art 267(3)
that where it is clear how to act, a national court need not ask a preliminary question
he Doctrine of Acte Clair means that where it is clear how to act, a national court need not ask a preliminary question
Where did this doctrine begin
De Costa
What case established that Where the European Court had already given a negative answer to a question relating to the validity of a Union act, another national court need not raise the same question again
International Chemcial Coporation
In what case was the General guidelines on the constitutional scope of the Acte Clair doctrine offered?
CILFIT
Under the CILFIT doctrine, how does a national court decide whether a question of EU law is acte clair?
- the wording of the provision
- comparison of different language versions
- comparison of the position of other national courts
- the threshold has been put very high: no scope for any reasonable doubt as to the correct application of EU law
How can the CILFIT doctrine be abused by national courts?
can be abused by national courts of last instance if they do not want to make a preliminary reference or if they do not want to “give up” their interpretation of EU law
What were the CILFIT conditions designed to prevent?
national courts from abusing the doctrine in order to evade their obligation to seek a preliminary ruling
What are 3 characteristics of the legal nature of preliminary rulings?
- once the the European Council has given a preliminary ruling, this ruling will be binding
- Preliminary rulings cannot bind the parties in the national dispute since the European Court will not decide their case
the courts rulings are addressed to the national court requesting the reference
what was the issue which arose in X and Van Dijk under the CILFIT doctrine in practise?
The lower court started a preliminary ruling procedure asking the CoJ a quite specific social security question. To the Supreme Court the answer to this question was plain,
If that interpretation would turn out to be incorrect, the Commission could initiate an infringement procedure or the affected individual could hold a Member State liable in damages for breaches of EU law caused by highest courts, as the CoJ recognized in Köbler.
What happened in the case of Ferreira da Silva regarding the CILFIT doctrine in practise?
The Portuguese Supreme Court had consistently held that a question of EU company law was acte clair and that there was no need for a preliminary reference
However, various national courts across the EU had made preliminary references on these questions and different national courts had reached different conclusions
Moreover, the Portuguese Supreme Court got it wrong: they had in fact misinterpreted the relevant EU legislation
The Portuguese Supreme Court had consistently held that a question of EU company law was acte clair and that there was no need for a preliminary reference
However, various national courts across the EU had made preliminary references on these questions and different national courts had reached different conclusions
Moreover, the Portuguese Supreme Court got it wrong: they had in fact misinterpreted the relevant EU legislation
f Ferreira da Silva regarding the CILFIT doctrine
What is Acte eclaire?
the COJ has already ruled in a previous judgement that this particular piece of EU law is valid
What is Acte clair?
the national court has no reasonable doubt that EU law is valid
If a national court fulfils the conditions of Dorsch Consult
(1) established by law 2) permanent 3) jurisdiction is compulsory and 4) inter partes 5) applies to rules of law and 6) is independent) then the preliminary reference will be admissible. What would happen if the conditions were not fulfilled?
the case will be declared inadmissible and the COJ would not rule on the substance of the case
Which case determined that , a case will be inadmissible if the underlying dispute is not genuine?
Foglio v Novello
What case remains one of the few exceptions where the court has actually refused to rule on a preliminary reference?
Foglio v Novello
Foglio v Novelloemains one of the few exceptions where the court has actually refused to rule on a preliminary reference, however what happens much more frequently?
that the Court will re-write the question(s) that have been asked by the national court. National courts are not always pleased with this – they may find that they have asked one question, but get an answer to an entirely different questionHowever, this re-writing exercise by the Court puts pressure on the national court to define the questions as precisely and concisely as possible
Parties do not have a right to claim that a preliminary reference should be made. However what is a negativ of this system?
there is no obligation on the national judge to refer
TheCILFIT doctrine seeks to achieve a balance in the relationship between the Court of Justice and national supreme courts. The national courts are given some autonomy to decide whether a reference is necessary. At the same time, this autonomy can of course be abused. How?
Some national supreme courts consistently refuse to make preliminary references in a particular area of law. For example, the European Commission has written to a number of Member States to say that it is considering starting an infringement procedure against them because their supreme courts are refusing to make preliminary references in the field of environmental protection.
TheCILFIT doctrine seeks to achieve a balance in the relationship between the Court of Justice and national supreme courts. The national courts are given some autonomy to decide whether a reference is necessary. At the same time, this autonomy can of course be abused.. Some national supreme courts consistently refuse to make preliminary references in a particular area of law.
How has the European Commission responded?
the European Commission has written to a number of Member States to say that it is considering starting an infringement procedure against them because their supreme courts are refusing to make preliminary references in the field of environmental protection.
