Preliminary Reference - Art 267 Flashcards
Relationship CJEU - NC
Reference based - not an appeal system
Art 267 (1)(a)
Interpretation of the treaties - obligation to redress if CJEU’s answer is national law incompatible with EU law
Primary law –> no question as to their validity
Art 267 (1)(b)
Validity and interpretation of acts of the EU –> secondary law, validity can be questioned
Art 267 (2)
Discretion to refer
Art 267 (3)
Obligation to refer: COURTS OF LAST RESORT
What is a body of last resort under 267(3)?
1) abstract theory: Body whose decisions are never subject to appeal (like a SC)
2) concrete theory: Body whose decision are not subject to appeal in the type of case in question
Suggested in Costa || applied in Hoffmann
CJEU favoured the concrete approach: no right to appeal here because sum involved too small –> NC was one against whose decision there was no judicial remedy in the case at hand –> they’d be stuck with misinterpreted Union law
Lyckeskog
Confirmed the Court’s favouring of the concrete approach
Jacobs AG on 267(3)
Difficulty in establishing whether a court is really final
Development of system of precedent
Costa –> CILFIT (held that a previous ruling could be relied upon) –> Foto-Frost
ICC - PRECEDENT
CJEU confirmed the although NC has discretion to refer, it could be told to refer to earlier judgements –> original ruling will have multilateral and not just bilateral effect
Foto-Frost
NC cannot themselves find that EU law is invalid
Kuehne
A ruling under 267 must be applied to relationships BEFORE ruling was given
Development of the relationship CJEU –> NC
horizontal, bilateral relationship developed into a multilateral one due to a system of precedent
ACTE CLAIR doctrine
CILFIT
NC might feel that the answer to an issue is so clear that no reference is required, even if there is no prior EU judicial decision on this point
However…
must be assist in light of difficulty of interpretation, risk of divergences…
Responses to CILFIT
Mancini and Keeling: “give and take” situation creating dialogue
Jacobs AG: CILFIT conditions too restrictive, should be applied in a more common sense approach i.e. outdated requirement that courts compare all language versions of particular measure
Rasmussen: additional MS meant more work for CJEU –> especially now CILFIT criteria should be relaxed
Intermodal
Reaffirmed CILFIT conditions but declined to extend them
R (Countryside Alliance) v AG
CILFIT criteria: SC for example (according to Craig and de Burca) does not consider criteria separately but asked if answer is “clear beyond the bounds of reasonable argument”
Criteria for NC to refer (MS perspective)
1) Question raised before court/tribunal of MS
2) Decision on question necessary to give judgement
CJEU’s perspective
Costa: initially liberal approach to promote use, reference even though it wasn’t perfectly framed ==> Foglia (and no 2): CJEU regards itself as having ultimate authority (HIERARCHY), NOT A GENUINE DISPUTE
Responses to Foglia
Bebr: “slippery concept with dangerous pitfalls” concept of cooperation established through precedent
vs.
Wyatt: Enforcement actions (258/259) also subject to preliminary objections concerning admissibility
When has CJEU declined jurisdiction
i) hypothetical cases (however, test cases might pass)
ii) question raised wasn’t relevant to resolution of dispute (Corsica Ferries, Dais)
iii) question wasn’t articulated sufficiently clear
iv) facts are insufficiently clear (Telemarsicabruzzo)
Language in Art 267
language of cooperation but case law changed rhetoric towards more exercise of power by CJEU
APPLICATION of treaty
CJEU has power to interpret treaty not to apply it, however “guidance” to almost the point of application:
Van Gend
Marleasing
Tridmas
Relationship of “cooperative federalism”between CJEu and NC
“System of precedent”
Symbolic advantage: NC become enforces of EU law in their own right –> 96.3% national implementation of CJEU rulings
Consequences of a refusal to refer
a) Koebler: damages
b) enforcement action under Art. 258
c) matter might come before the Court via a different court referring –> Kuehne: ruling under 267 must be applied to legal relations before it was given
REFORM: filtering system
However, we’re not an appellate system –> there wouldn’t be any decision by an EU court AT ALL
REFORM: moving towards an appellate system
This still wouldn’t decrease the CJEU’s work load
CJEU is NOT a fully developed federal SC
Procedurally: individuals have no right of appeal, CJEU only advises not actually decide
Institutionally: EU doesn’t have the judicial hierarchy characteristic off federal system
Horizontal, bilateral –> vertical, multilateral relationship
Assertion of EU law supremacy
de facto precedent
blurring the line between interpretation and application
Van Gend || Costa
Creation of a new legal order of constitutionalisation of treaties
Arnull: reference procedure
CJEU gained insight into practical/legal problems at national level and enabled them to adopt principles of national law –> legitimacy
Weiler: reference procedure
Lower courts were enabled to engage with the highest jurisdiction and suddenly had JR power over executive + legislative branches in the country they didnt have before
Tridimas
Art 267 enabled a process of “constitutional rediscovery” of the new legal order
Re-allocation of power following Art 267: 3 levels
1) supranational level
2) national level
3) within national judiciary
Supra-national level: reallocation of power
MS governments –> institution of the Community
Van Gend
Costa
National level: reallocation of power
Executive, legislative –> judiciary
Empowerment of NC:
direct effect - can question own government
indirect effect: strengthening of judicial accountability
Within national judiciary: reallocation of power
national court of last instance –> lower national courts
Art 267 = alternative legal authority –> emancipating courts from obligations/pressure to follow rulings of national higher courts
Schwarze || Bertini
“Court or tribunal” capable of making reference widely defined
Lourenco || Telemarsicabruzzo
References increased and the Court became more assertive in reviewing admissibility –> not enough information/context provided
Tridimas: CILFIT
Maturity in the development of community legal order - internalisation of principles
Treaty of Amsterdam
Only last instance courts can seek preliminary reference in some aspects in relation to free movement of persons –> FRAGMENTATION OF PRELIMINARY REFERENCE
CONTRA treaty of Amsterdam limitation on Art 267
a) restrict access to justice
b) decrease of enforcement power: ability of lower national courts to make reference is the most potent remedy against refusal of last instance court to refer -
Becker
Fenocchio
Tridimas: Why did the treaty of Amsterdam limitations occur?
Extension of constitutionalist pluralism in the jurisdictional field: “quid pro quo” for bringing politically sensitive areas (traditionally reserved to MS) under the auspices of supranational institutions
CJEU’s interventionist role in reviewing admissibility
Foglia BUT Foglia = aberration
Preussen Elektra, Arduino
Dorsch Consult: definition of court/tribunal
HOLISTIC APPROACH - label irrelevant, function important
a) body established by law
b) permanent
c) jurisdiction compulsory
d) procedure = inner partes
e) applies rules of law
f) independent from the state
SYFAIT
Not sufficiently independent from the state
Corbiau: definition of Borsch Consult’s independence
Referring body must act as a 3rd party in relation to authority which adopted questioned decision
Relaxed “independence” criterion
The court is less pre-occupied with substantive standards of justice and more with functional criterion (make 267 available to all judicial bodies responsible for dealing with questions relating to community law)
Dorsch Consult: Federal Supervisory Board COULD make reference
AG: It wasn’t court/tribunal because it didn’t comply with sufficient procedural safeguards, functionally part of Federal Cartel Office
De Coster - Colorer AG
Court’s liberal approach to court/tribunal definition for 267 came under attack: new definition of independence inspired by Art 6(1) ECHR –> not endorsed
Schmid
Tightened independence requirements and provided more detailed examination
Miles v European Schools
CONTROVERSIAL JUDGEMENT
The Complaints Board of European Schools was set up under an international agreement between different member states and the EU, the European Schools Convention - question was whether it could do so under TFEU article 267
Held: Complaints Board of European Schools was a court, but not of a member state
Jurisdiction by renvoi
CJEU reasserting its jurisdiction despite relevant national legislative measures –> contributing to its own workload
Dzodzi
Overriding concern to ensure uniformity even though Community law was only tangentially relevant
Jacobs AG in Leur-Bloem
Doesn’t buy Dzodzi “uniformity” argument: if court is called upon to interpret outside its proper context (community) - will it be binding on NC?
Kofisa
Cases by RENVOI: NC usually don’t want CJEU jurisdiction
HERE: CJEU established its jurisdiction only to leave the matter essentially to NC
CORE OF art. 267
UNIFORM INTERPRETATION
Nordsee v Reederei Mond
Arbitrators are not courts/tribunals
Irish Creamery
No preliminary ruling because facts had not been resolved
Foglia (both)
Not a genuine dispute, created to get answer on French tax law (validity) –> matter for NC to decide
CILFIT 3 conditions for clarity
Acte Clair
1) language translations (interpretation/wording might differ)
2) legal terminology
3) context
