Article 267 TFEU Procedure

Question 1

What are the Dorsch Criteria?

Answer 1

(a) whether the body is established by law;
(b) whether it is permanent;
(c) whether its jurisdiction is compulsory;
(d) whether its procedure is inter partes (ie, had hearings where all parties could be present and be heard);
(e) whether it applies rules of law; and
(f) whether it is independent

Question 2

What test do you use to establish whether a body is a Court or Tribunal?

Answer 2

Dorsch Criteria

Question 3

What test do you use to establish whether an decision on EU law is necessary?

Answer 3

CILFIT Criteria

Question 4

What are the CILFIT Criteria?

Answer 4

(a) where the question of interpretation of Community Law (now EU Law) raised before the national court is not relevant to the conclusion of the case (CILFIT, para 10);
(b) where previous decisions of the ECJ have already dealt with the point of Community Law (now EU Law) in question (CILFIT, para 14);
(c) where the correct application of Community Law (now EU Law) is so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved, and the court is convinced that the matter is equally obvious to the courts of other Member States and to the ECJ (assessed on the basis of the characteristic features of EU Law and the particular difficulties to which its interpretation gives rise) (CILFIT, paras 16–20).

Question 5

What case discusses using the CILFIT criteria to establish whether a EU referral is necessary?

Answer 5

Da Costa

Question 6

What is a Court of court of Mandatory Jurisdiction?

Answer 6

Court of Final Instance
Mandatory = Must make reference
e.g. Costa v ENEL – Case stopped at magistrates’ court due to the small amount of the claim, therefore the magistrates had to provide a reference to the ECJ.

Question 7

What is the case for mandatory jurisdiction?

Answer 7

Costa v ENEL – Case stopped at magistrates’ court due to the small amount of the claim, therefore the magistrates had to provide a reference to the ECJ.

Question 8

What does permissive jurisdiction mean?

Answer 8

The court May Refer to the ECJ.

Question 9

What are the guidelines as to whether a court of permissive jurisdiction should approve?

Answer 9

ECJ Guidelines:
• Must refer on a new question of EU Law
• Courts not bound by national precedent
• Settle facts and matters of National law before referring
• A question of invalidity of secondary EU Law should be referred immediately, Fotofrost case
UK Guidelines
• If the question is critical to the outcome then you must refer, unless the UK Court can respond with complete confidence (Ex p Else)
• Contrast with Trinity Mirror case, where the EU Law asked the courts to use their discretion on referral.

Question 10

The ECJ Guidelines for permissive jurisdiction includes: ‘A question of invalidity of secondary EU Law should be referred immediately’ what is the case to support this?

Answer 10

Fotofrost

Question 11

What two cases do the UK guidelines on permissive jurisdiction discuss?

Answer 11

• If the question is critical to the outcome then you must refer, unless the UK Court can respond with complete confidence (Ex p Else)
• Contrast with Trinity Mirror case, where the EU Law asked the courts to use their discretion on referral.

Question 12

Are they bound by the ECJ’s ruling?

Answer 12

Court is bound, as is every other court, in every member state.

Question 13

Has the ECJ got the right to refuse a referral?

Answer 13

• ECJ Cannot interpret National Law
 Costa v ENEL

• Absence of a Genuine dispute
 Foglia v Novello (Nos 1 and 2) p.53

• Insufficient Information
 Telemarsicabruzzo

Question 14

What are the cases for incorrect failure to refer by final instance courts?

Answer 14

Köbler v Austria
• State liability claim possible
• “sufficiently serious” if infringement is “manifest”
Cooper v AG (English example)