Article 267 TFEU Flashcards
Steps to work out whether Article 267 TFEU reference can be made
- Is body court or tribunal (Dorsch Consult)
- Is decision on EU law point necessary for judgment? (CILFIT)
- Jurisdiction of court in question
- Could ECJ refuse reference?
Dorsch Consult criteria
- established by law
- permanent
- applies rules of law
- jurisdiction compulsory
- independent
- inter partes
Broekmeulen
Not all factors from Dorsch Consult must be satisfied
Nordsee
CILFIT
Decision on question not necessary if:
- question not relevant to conclusion of case
- previous ECJ decision dealt with point of law (does not preclude reference - Da Costa)
- correct application of EU so obvious to leave no scope for reasonable doubt
Rheinmuhlen-Dusseldorf
Higher court cannot prevent lower court from making reference
Costa v ENEL
Court of mandatory jurisdiction is highest court for particular type of case, from which there is no appeal
Different types of courts
Mandatory (highest, from which there is no appeal)
Permissive (discretion as to whether make reference or not)
ECJ Information Note Guidelines
References particularly useful where:
- new question of general interest for uniform application of EU law
- existing case law not applicable
R v International Stock Exchange
Lord Bingham urged national courts to make reference if not completely confident
Trinity Mirror
National courts should show a greater measure of self-restraint
Foto-Frost
National court cannot declare EU law invalid. If it doubts validity, must make reference
ECJ will refuse reference
Where there is no genuine dispute
Where question requires interpreting national law
Where national court provides insufficient factual background
Kobler v Austria
Individual may bring action against national court under state liability and will have claim of breach if ‘sufficiently serious’
