ECJ: The Article 267 TFEU Reference Procedure

Question 1

What are the stages in an Article 267 TFEU reference procedure?

Answer 1

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?

Question 2

STEP1: Is the body making a reference a COURT (OR TRIBUNAL)?

Answer 2

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

Question 3

Do all the factors for the deciding whether the body is a court or tribunal have to be present?

Answer 3

No - it is sufficient that a significant number are present (Broekmeulen v Hiusarts)

Question 4

STEP 2: Is a decision on the point of EU law necessary?

Answer 4

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:

Question 5

Do Courts of Mandatory Jurisdiction have discretion?

Answer 5

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

Question 6

If Court of Mandatory Jurisdiction does make a reference?

Answer 6

It will be bound by the ECJ decision, which in addition, will apply in all MSs

Question 7

If Court of Mandatory jurisdiction does not make a reference?

Answer 7

ECJ will not intervene, but individual may bring an action under state liability (Kobler)

Question 8

Do Courts of Permissive Jurisdiction have discretion?

Answer 8

Depending on ECJ and national guidelines, a court of permissive jurisdiction MAY make a reference

Question 9

A higher national court will not prevent a lower national court from referring (ECJ guideline)

Answer 9

Rheinmuhlen-Dusseldorf

Question 10

National court cannot declare EU law invalid, thus where there is doubt as to interpretation, national courts should make a reference

Answer 10

Foto-Frost

Question 11

Before making a reference, national courts should be resolved first

Answer 11

Irish Creamery Milk Suppliers Association

Question 12

National guidelines on making reference?

Answer 12

R v International Stock Exchange, Ex p Else [1983] - Courts must make a reference unless they can answer the question in complete confidence

Question 13

Trinity Mirror v Customs and Excise Commissioners [2001]

Answer 13

However, Courts may exercise restraint having regard to: Wishes of the parties, ECJ’s case load and the general importance of the decision

Question 14

Can an individual appeal to the ECJ?

Answer 14

No - if the national court decides not to make a reference, an individual may not appeal to the ECJ himself

Question 15

On what grounds can the ECJ refuse and Art 267 TFEU reference?

Answer 15

• 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)

Question 16

Facts of Foglia v Novello (No.1) [1980]

Answer 16

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.

Question 17

Facts of Dorsch Consult

Answer 17

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.

Question 18

Facts of Costa v ENEL

Answer 18

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.