Article 267 TFEU Procedure

Question 1

Dorsch Consult

Answer 1

Established criteria for determining whether a body is a ‘court or tribunal’ for the purposes of Art 267 TFEU:
•	Whether the body is established by law
•	Whether it is permanent
•	Whether its jurisdiction is compulsory
•	Whether the procedure is inter partes
•	Whether it applies rules of law
•	Whether it is independent

Question 2

Broekmeulen

Answer 2

ECJ decided that not all the Dorsch Consult criteria needed to be met for a body to be considered a court or tribunal for the purposes of Art 267 TFEU

Question 3

Nordsee

Answer 3

An arbitration panel is not considered a court or tribunal, due to its essentially voluntary nature

Question 4

CILFIT

Answer 4

Established the criteria for when a national court should refer a question to the ECJ. They should only refer when:
• The answer to the question is necessary to reach judgement in the particular case
• The matter has not previously been ruled on by the ECJ
• The point of law is not clear and free from doubt

Question 5

Da Costa en Schaake

Answer 5

Courts aren’t required to make reference to the ECJ where previous case law had already settled the matter, but national courts aren’t precluded from making references on similar points if they so choose

Question 6

Syfait

Answer 6

Body must be sufficiently independent of government to make Art 267 references and be considered court or tribunal

Question 7

Article 263 TFEU

Answer 7

ECJ can review the legality of acts taken by EU institutions (such as in Roquette Fréres)

Question 8

Articles 258-260 TFEU

Answer 8

ECJ may hear proceedings against Member-States brought by Commission (Art 258), other Member-States (Art 259) and impose fines on Member-States in these proceedings (Art 260)

Question 9

Article 267(2)

Answer 9

Courts of permissive jurisdiction may make a reference to the ECJ on matters of interpretation

Question 10

Article 267(3)

Answer 10

Courts of mandatory jurisdiction must make a reference to the ECJ on matters of interpretation

Question 11

Costa v ENEL (definition of mandatory jurisdiction)

Answer 11

A court is considered to be of ‘mandatory jurisdiction’ for the purposes of Art 267 if it is the highest court to which the particular type of case can be appealed

Question 12

Rheinmeulen-Dusseldorf

Answer 12

A higher court cannot prevent a lower court from making an Article 267 reference

Question 13

Foto-frost

Answer 13

A national court cannot declare a piece of EU law invalid, so even courts of permissive jurisdiction must make reference where the question is on the validity of EU law

Question 14

Costa v ENEL (limitation on ECJ’s jurisdiction)

Answer 14

The ECJ will not interpret national law, so is unable to answer questions on whether national law conflicts with EU law where it involves this

Question 15

Foglia v Novello

Answer 15

The ECJ does not have jurisdiction to rule where there is an absence of a genuine dispute between parties

Question 16

Telemarsicabruzzo

Answer 16

The ECJ will refuse a reference where not enough factual background is provided to reach a judgement

Question 17

Köbler v Austria

Answer 17

A state can be sued for its final instance court’s refusal to make a reference where it should have done