Preliminary reference

Question 1

61 Bosch v de Gues

Answer 1

‘Applied judiciously – one is tempted to say loyally – the provisions of Article [267] must lead to a real and fruitful collaboration between the [national] courts and the Court of Justice … with mutual regard for their respective jurisdictions. It is in this spirit that each side must solve the sometimes delicate problems which may arise in all systems of preliminary procedure, and which are necessarily made more difficult in this case by the differences in the legal systems of the Member States as regards this type of procedure’

Question 2

Cura Anlagen v Auto Service Leasing [2002]

Answer 2

‘According to settled case-law, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Nevertheless, the Court has held that it cannot give a preliminary ruling on a question submitted by a national court where it is quite obvious that the ruling sought by that court on the interpretation or validity of [EU] law bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it’

It is solely for the national court for the questions to be put and the reference for the CJEU. Facts and witnesses put before national court, all national court has to do is provide CJEU information and then two parties elaborate.
There will be cases where CJEU refuses to refuse reference. Questions sought by national court bears no relations to the facts before it or where problem is hypothetical or where CJEU does not have the factual information necessary to give an answer to the case. However, courts usual approach is receptive.

Question 3

Filipiak

Answer 3

dispute over tax in Poland, argued there was a possible implication for EU tax rules. This was sufficient for CJEU to hear case.

Question 4

PreussenElektra

Answer 4

dispute arose in Germany as a result of German rule requiring retailers to buy a proportion of their fuel from wind farms. There was a dispute about the legality of this rule, one of the questions asked by the court about whether it was an internal matter in Germany. No cross boarder dimension between member states. Nevertheless, the national court referred the question. CJEU said so long as one of the parties believed that there was an indirect link with the EU, this was sufficient for court of justice to accept.

Question 5

Foglia v Novello I [1980]

Answer 5

– This was a dispute between an Italian wine dealer and one of his clients, they decided to go into dispute in order to challenge a tax on French wine. Case referred to court of justice by Italian judge. CJEU held: sole purpose of dispute was to engineer a judgement, they regarded this as an abuse. Duty of CJEU is to give guidance on national courts for genuine disputes brought before them. As this was not a genuine dispute the CJEU won’t give a ruling. Judge then sent it back to CJEU. Nothng in article 267 to prevent national court judge ping poning it back. CJEU said it is necessary for national court to explain that a reply to the question was not sufficient.

Question 6

Meilicke [1992]

Answer 6

hypothetical problem – Shareholder in company who disputed with company, he wanted to support theories. Litigation then occurred and referred questions to CJEU. This was a genuine dispute. CJEU said that there was no grounds to give a ruling because the case was hypothetical because it was an attempt by an author to prove theories, it was not for CJEU to prove or disprove these theories.

Court wont give ruling if there is a

1) Fake dispute
2) Hypothetical question

Question 7

00 Bacardi-Martini SAS, Cellier des Dauphins v Newcastle United [2003]

Answer 7

potential conflict with the laws of another Member State – Case concerning a televised match between Newcastle and Mets. Bacardi brought advertising for the match. However, the form of advertising by alcohol in this manner contravened in French manner. Therefore, the match could not be displayed in France. Bacardi then pulled out of the deal and tried to sue Newcastle. English courts then tried to see the compatibility of French rules in free movement. CJEU said cannot answer that question because national court can refer but needs relevant information.

Question 8

Costa v ENEL [1964]

Answer 8

Some questions the court won’t answer but sometimes they will.
CJEU produced a note to give a guidance as to how to word their questions.

Question 9

Dzodzi v Belgium [1990]

Answer 9

Concerned Belgium law which extended EU provisions beyond laid down in directive. This is lawful in minimisation harmonisation directive. The CJEU formed the view that it should give a ruling on additional national rules even though not required under EU law, because national law had been adopted in the context of EU law. Perhaps it is going beyond its discretion by ruling on national law.

Question 10

Foto-Frost [1987]

Answer 10

Custom duties imposed on Germany by imported binoculars. It was based on a commission decision addressed to Germany. Foto-Frost argued that the commission’s decision was invalid. Although dispute was in national court it concerned EU measure, could national court determine the measure? CJEU held: no only CJ can determine validity of EU measure only it has jurisdiction for uniformity reasons, even though the directive was addressed to Germany alone.

Question 11

Leur-Blom [1997]

Answer 11

‘…the Court should only rule in cases in which it is aware of the factual and legislative context of the dispute and in which that context is one contemplated by the [EU] rule. It seems to me that that view is the only one which is consistent with legal principle and with the purpose of [Art 267]; which guarantees the relevance of the Court’s ruling to the determination of the dispute; and which avoids the risk of the Court being asked to interpret a [EU] rule outside its proper context. It also provides a workable and clear criterion which will provide national courts with the requisite degree of certainty concerning the scope of the Court’s jurisdiction’

Question 12

2.4 Competence to refer

Answer 12

∗	is the body is established by law of the MS?
∗	is it permanent?
∗	is its jurisdiction compulsory?
∗	is its procedure inter-partes?
∗	does it apply rules of law?
∗	is it independent?

Question 13

Broeckmeulen [1981]

Answer 13

medical appeal committee – Found that a medical appeal committee was a court or tribunal for purposes article 267 on basis that it was a state body or body established by a state law. Permanent committee which had compulsory jurisdiction. It had an inter-parties procedure (so a doctor would be presented against profession) and applies rules of law and is independent. If it satisfies these measures then it is a tribunal/court.

Question 14

Nordsee

Answer 14

arbitration body - not a court or tribunal. It was an arbitration body that did not perform judiciary functions.

Question 15

Victoria Film [1998]

Answer 15

revenue board performed an essentially administrative not judicial function – Found not to be court or tribunal.

Question 16

Pretore di Salò v X [1986]

Answer 16

examining magistrate was able to refer questions to court of justice and it was accepted.

Question 17

Gabalfrisa [2000]

Answer 17

independence of the referring body. Tribunal was not sufficiently independent.

Question 18

Lyckeskog [2002]

Answer 18

admissibility powers of national supreme court – examination of merits means that parties are not deprived of a judicial remedy – supreme court retains the obligation to refer. In Sweden the question was raise, CJEU said no not going to accept that COA is final court of which there is no right of appeal, it must be a superior court of member state. Court justified this by saying that there is a process for inadmissibility proceedings whereby the issue can be considered by Supreme Court even if COA does not refer it.

Question 19

CILFIT v Ministry of Health [1982]

Answer 19

No obligation to refer where:

1) Where the answer to the question, regardless of what it may be, can in no way affect the outcome of the case (para 10). Answer is so clearly decided on facts
2) Where previous decisions of the Court of Justice have already dealt with the point of law in question even though the questions at issue are not strictly identical (para 14)
3) Where the issue had not previously been dealt with but the correct application of Union law is so obvious as to leave no scope for reasonable doubt. The national court must first ask itself the question whether the question would be equally obvious to the courts of other Member States and the Court of Justice having regard to ‘the characteristic features of Union law and the particular difficulties to which its interpretation gives rise’ (paras 17-21)

Question 20

Ferreira da Silva and Others,

Answer 20

CJEU held: the fact that other national courts or tribunals have given contradictory decisions is not in principle a conclusive factor capable of triggering the obligation set out in the third paragraph of Article267 TFEU. However, in circumstances which are characterised both by conflicting lines of case-law at national level regarding a concept contained in a provision of EU law and by the fact that that concept frequently gives rise to difficulties of interpretation in the various Member States, a national court or tribunal against whose decisions there is no judicial remedy under national law must comply with its obligation to make a reference to the Court, in order to avert the risk of an incorrect interpretation of EU law.

Question 21

Köbler [2003]

Answer 21

the Court of Justice found, for the first time, that a national court of last instance, the Supreme Court of Austria, had fallen foul of the CILFIT criteria by withdrawing a reference that it had made to the Court of Justice. The Court of Justice found that the reference should have been maintained. The national supreme court had, when making its decision to withdraw its reference, made an incorrect interpretation of the Court of Justice’s case law and was not entitled to take the view that the point of law at issue was clear or left no room for reasonable doubt (para 117). The whole purpose of obliging a court adjudicating at last instance to make a reference in appropriate cases is in order to prevent rights conferred on individuals by Union law from being infringed which cannot thereafter be corrected (paras 34-35).

Corned with free movement. Case was referred from Austrian supreme court to CJEU. In the meantime, the CJEU rules on another case where facts were similar. The Austrian court took the view of the subsequent ruling of CJEU it felt confident to judge on the case so withdrew the reference. Mr Coblet then sought financial compensation based on fact that Austrian supreme court denied his EU rights. Held: Austrian court should not have withdrawn the case as they confused the case, but did not have to pay.

Question 22

Cartesio

Answer 22

‘Where rules of national law apply which relate to the right of appeal against a decision making a reference for a preliminary ruling, and under those rules the main proceedings remain pending before the referring court in their entirety, the order for reference alone being the subject of a limited appeal, the autonomous jurisdiction which [Art 267] confers on the referring court to make a reference to the Court would be called into question, if – by varying the order for reference, by setting it aside and by ordering the referring court to resume the proceedings – the appellate court could prevent the referring court from exercising the right, conferred on it by the [TFEU], to make a reference to the Court.’

Question 23

R v International Stock Exchange, ex parte Else [1993]

Answer 23

‘… if the facts have been found and the Community law issue is critical to the court’s final decision, the appropriate course is to refer the issue to the Court of Justice unless the national court can with complete confidence resolve the issue itself. In considering whether it can the national court must be mindful of the differences between national and Community legislation, of the pitfalls which face a national court venturing into what may be an unfamiliar field, of the need for uniform interpretation throughout the Community and of the great advantage of the Court of Justice in construing Community instruments. If the national court has any real doubt it should obviously refer’