Article 267 TFEU Reference Procedure

Question 1

According to TFEU Art. 276(1) the ECJ has jurisdiction to make rulings on what?

Answer 1

The interpretation of the Treaties.

The validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union.

Question 2

According to the Dorsch Consult what are the 5 relevant factors to consider if the body making a reference is a court or tribunal?

Answer 2

1. Established by law
2. Permanent
3. Applies the rules of law
4. Compulsory jurisdiction
5. Inter partes procedure

Question 3

What case demonstrated that not all factors of the Dorsch Consult need be satisfied?

Answer 3

Broekmeulen; an Appeals Committee of Dutch medical profession able to make a reference

Question 4

What case demonstrated that other factors can override the Dorsch Consult?

Answer 4

Nordsee; private arbitration is neither a court nor a tribunal due to the voluntary nature of the proceedings

Question 5

According to the CILFIT criteria referral to the ECJ is not necessary under what circumstances?

Answer 5

1. Where interpretation of EU law is not relevant to the outcome of the case.
2. Where decisions of the ECJ have already dealt with the point in question.
3. Where the correct application of EU law is so obvious as to leave no scope for any reasonable doubt.

para. 21: referrals are assessed on the basis of these criteria

Question 6

Which case established the Acte Eclaire doctrine?

Answer 6

Da Costa; if the question has already been answered in previous ruling by ECJ MS is not obliged to make a reference [pre-dates CILFIT]

Question 7

What is the definition of a court of mandatory jurisdiction under TFEU Art. 267(3)?

Answer 7

is one against whose decision there is no judicial remedy under national law.

Question 8

Which case established that a court of mandatory jurisdiction is the highest court in the national system for that particular type of case, and from which there is no appeal?

Answer 8

Costa v ENEL; due to the small sum of monies involved.

Question 9

Which case established the right of an individual to bring action agains a national court that fails to refer a matter of EU law to the ECJ, if the breach is “sufficiently serious” ?

Answer 9

Kobler v Austria

Question 10

What does TFEU Art. 267(2) instruct courts of permissive jurisdiction to do with matters of EU law?

Answer 10

They may refer to ECJ or decide the question themselves.

Question 11

What case established that a higher court cannot prevent a lower court from making a reference?

Answer 11

Rheinmuhlen

Question 12

What case established that if a court is doubtful about validity of EU law it must make a referral?

Answer 12

Foto-Frost; national courts cannot declare EU law invalid.

Question 13

What case established that it is appropriate for national courts to first establish facts/resolve issues of national law before seeking reference from ECJ?

Answer 13

Irish Creamery v Ireland

Question 14

In which case did Lord Bingham urge national courts to make reference if unable to answer in complete confidence as the ECJ has greater expertise?

Answer 14

R v Int. Stock Exchange

Question 15

Which case stated that making a reference was most appropriate where the question is of general importance and a ruling is likely to promote uniform application throughout MS?

Answer 15

Trinity Mirror v Customs

Question 16

What case established that the ECJ will refuse a reference where there is no genuine dispute?

Answer 16

Foglia v Novello

Question 17

What case established that the ECJ will refuse a reference where the question involves interpreting national law?

Answer 17

Costa v ENEL

Question 18

What case established that the ECJ will refuse a reference where the national court provides insufficient factual background?

Answer 18

Tele v Circostel