ECJ: The Article 267 TFEU Reference Procedure Flashcards
What are the stages in an Article 267 TFEU reference procedure?
STEP1: Is the body making a reference a COURT (OR TRIBUNAL)?
STEP 2: Is the decision on a point of EU law necessary?
STEP 3: Discretion of national courts: Should the national court make a reference?
STEP 4: Discretion of ECJ: Could the ECJ refuse the reference?
STEP1: Is the body making a reference a COURT (OR TRIBUNAL)?
Dorsch Consult (supported by Nordsee v Reederei Mond): Relevant factors are whether the body in question:
. Is established by law
. Enforces/applies rules of law
. Is of compulsory jurisdiction (MUST disputes be heard there?) influential factor
. Has an inter pares procedure (i.e. hearings where all parties may be present and be heard)
. Is permanent
. Is independent
Do all the factors for the deciding whether the body is a court or tribunal have to be present?
No - it is sufficient that a significant number are present (Broekmeulen v Hiusarts)
STEP 2: Is a decision on the point of EU law necessary?
CILFIT v Ministro della Sanito criteria: A decision is NOT necessary if:
- The question of EU law is not relevant to the conclusion of the case; or
- ECJ has already ruled on the same point of law (e.g. ECJ has already ruled that directive in question is directly effective) [However, in limited circumstances it still may be possible to refer – Da Costa en Schaake]
- The application of EU law is so obvious that it should be obvious to that national court (Doctrine of Acte Clair)
If a decision is necessary under CILFIT, consider whether the court has discretion to make a reference:
Do Courts of Mandatory Jurisdiction have discretion?
No - Under Art 267 TFEU, final instance courts (including the highest court in the national system for a case of that type - Costa v ENEL) MUST make a reference
If Court of Mandatory Jurisdiction does make a reference?
It will be bound by the ECJ decision, which in addition, will apply in all MSs
If Court of Mandatory jurisdiction does not make a reference?
ECJ will not intervene, but individual may bring an action under state liability (Kobler)
Do Courts of Permissive Jurisdiction have discretion?
Depending on ECJ and national guidelines, a court of permissive jurisdiction MAY make a reference
A higher national court will not prevent a lower national court from referring (ECJ guideline)
Rheinmuhlen-Dusseldorf
National court cannot declare EU law invalid, thus where there is doubt as to interpretation, national courts should make a reference
Foto-Frost
Before making a reference, national courts should be resolved first
Irish Creamery Milk Suppliers Association
National guidelines on making reference?
R v International Stock Exchange, Ex p Else [1983] - Courts must make a reference unless they can answer the question in complete confidence
Trinity Mirror v Customs and Excise Commissioners [2001]
However, Courts may exercise restraint having regard to: Wishes of the parties, ECJ’s case load and the general importance of the decision
Can an individual appeal to the ECJ?
No - if the national court decides not to make a reference, an individual may not appeal to the ECJ himself
On what grounds can the ECJ refuse and Art 267 TFEU reference?
- There is an absence of genuine dispute (Foglia v Novello – dispute concocted to change French law)
- There is insufficient factual background on the questions (Telemarsicabruzzo v Circostel)
- The question involves compatibility with national law, as the ECJ will advise only on EU law (Costa v ENEL). (In such cases – see Van Gend – ECJ may reword question)
Facts of Foglia v Novello (No.1) [1980]
F, a wine producer, agreed to sell wine to N, an exporter for delivery as a gift to N’s friend in France. Contract: N should not bear the cost of any taxes levied by the French authority. F had to pay a French tax. Tries to claim from N. N refuses to reimburse F on the grounds that the French tax was contrary to EC Law. F sued N in an Italian court. Italian court sought a preliminary ruling on the legality under EC law of the French tax. ECJ refused to accept the reference.
Facts of Dorsch Consult
Dorsch, a German contractor, unhappy not to be granted an arch/const/eng contract. Appealed against the refusal to the Ministry it believed had jurisdiction, but Ministry said had no jurisdiction. Then applied to Federal Supervisory Board claiming Ministry had wrongly refused to deal with appeal. FSB referred to ECJ.
Key question was whether the FSB was a court or tribunal. ECJ decided that it was.
Facts of Costa v ENEL
An Italian magistrate’s court was a court ‘against whose decisions there is no judicial remedy under national law.’ Italian court rules prevented Mr Costa appealing due to the small sum in dispute.