Article 267 TFEU Reference Flashcards
Dorsch Consult
German contractor was unhappy about not receiving a public service contact; appealed to the Ministry which referred it to the Federal Supervisory Board; Board referred various questions to ECJ. ECJ required to determine if board was court or tribunal. Board deemed to be a court or tribunal based on various factors.
Ratio: For a body to be a court or tribunal, the body 1) must be established by law, 2) it must be permanent, 3) its jurisdiction must be compulsory, 4) its procedures must be inter partes (hearings where all parties present and heard), 5) it must apply the rule of law, 6) it must be independent
Note: not all factors must be satisfied, but most.
Broekmeulen
Broekmeulen refused registration as GP in the Netherlands; appealed the decision of the Appeals Committee of the Dutch medical profession, which wanted to refer questions to the ECJ; held to be a court or tribunal
RATIO: An appeal commission of a profession will be considered a body or tribunal where, for example, it operates with the approval and assistance of the public authorities, its membership includes ministerial appointees, its procedure is inter partes, and its decisions are final and not subject to appeal by ordinary courts.
Nordsee v Reederei Mond
Contract dispute between 3 German firms. In the contract, the firms had agreed to use arbitration to resolve disputes than than ordinary courts; held that arbitrator was not a court or tribunal
RAITO: The voluntary nature of an arbitrator’s jurisdiction and the absence of official involvement in the arbitration process is key in establishing that an arbitrator is not a court or tribunal within the meaning of Article 267.
CILFIT
CILFIT and other wool importers based in Italy contested the health inspection levies imposed upon them by the Italian state and argued these did not apply to wool importers.
RATIO: A reference will not be necessary if it meets the 3 criteria.
o Where the question of interpretation of EU law is not relevant to the outcome/conclusion of the case;
o Where decisions of the ECJ have already dealt with point of EU law in question; and
o Where the correct application of EU law is so obvious as to leave no scope for any reasonable doubt as to way question should be resolved and the issue is seen as being equally obvious for all member state courts and the ECJ
Da Costa en Schaake
Case brought forward regarding lawfulness of customs duties and whether a Treaty article had direct application within the territory of a member state; question referred to the ECJ.
RATIO: Even though a similar reference has been made, an additional one may still be allowed if necessary.
Doctrine of Acte Clair as first set out in Da Cosa en Schaake
No reference will be necessary if the national court considers that the EU law point before it is clear and free from doubt
Costa v ENEL
Costa was shareholder in an Italian electricity company which was nationalized; refused to pay electricity bill arguing nationalization was in breach of EU law; Italian court rules prevented Costa from appealing to any higher Italian court due to the small amount of money in dispute; held to be a court of mandatory jurisdiction
RAITO: Courts of mandatory jurisdiction are those ‘against whose decisions there is no judicial remedy under national law’, i.e the highest court of the national system of that particular type of case.
The ECJ will refuse a reference when it requires it to rule on national law, however it may reformulate EU law to provide additional clarity
Where there is conflict with later domestic law, EU law is given supremacy.
Kobler v Austria
Professor applied for increment under particular law based on his years of service; disagreement over how to count the years service (increment was based on 15 years of service); brought case to court; administrative court initially made referral but then withdrew request. held not sufficiently serious in this case but possible.
RATIO: A claim can be made under the doctrine of state liability for a court’s incorrect failure to refer, but the state will be liable only where the breach is sufficiently serious.
Rheinmuhlen-Dusseldorf
A lower court in the German court hierarchy was bound by German law to apply an appellate court’s interpretation of a point of EU law, even though the lower court though that the appellate court’s interpretation was incorrect; ECJ rules that this was incorrect
RATIO: A higher court cannot prevent a lower court from making a referral.
Foto-Frost
Case revolved around a post-clearance recovery of import and export duties; ECJ confirmed to a German court that only the ECJ could declare a piece of EU law invalid.
RATIO: National courts cannot declare a piece of EU law invalid.
Ex P Else Ltd
Case concerned a dispute over harmonized rules provided by the EU directive regarding protection to shareholders and the London Stock Exchange
RATIO: British courts should exercise their discretion in favour of referring where the question of EU law was critical to outcome unless could answer question in complete confidence, due to the ECJ’s expertise in EU law (Lord Bingham).
Trinity Mirror
Case concerned whether the issuing of shares by a company amounts to service for the purposes of VAT; issuance of shares held to be ‘something done’, as required by the relevant EU directive.
RAITO: Courts should exert restraint when deciding whether to make referrals, so as not to overload the ECJ (Court of Appeal)
Reference most appropriate where question is one of general importance and where ruling is likely to promote the uniform application of EU law throughout the EU.
Ref inappropriate where unlikely to have application beyond the case in hand.
Foglia v Novella
F sold wine to N for delivery as a gift to N’s friend in France; contract stated N should not bear the cost of any taxes levied by the French government in breach of EU law; F had to pay the tax which he then tried to reclaim from N; N refused to reimburse F on the grounds that the French tax was in breach of EU law; F sued in Italian court – court sought preliminary ruling on the legality under EU law of the French tax.
ECJ held no genuine dispute; that parties engineered a dispute to push ECJ to rule that French national tax systems (disadvantageous to both) were in breach of EU law – ulterior motive - ECJ refused reference
RATIO: The ECJ will refuse a reference where there is an absence of genuine dispute.
Telemarsicabruzzo v Circostel
Complex competition law questions were posed with almost no factual background or context
RATIO: The ECJ will refuse a reference where there is insufficient information about the factual background to a case or relevant provisions of national law.
