Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

EU (Henriette) > Preliminary Reference - Art 267 > Flashcards

Preliminary Reference - Art 267 Flashcards

1
Q

Relationship CJEU - NC

A

Reference based - not an appeal system

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Art 267 (1)(a)

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Art 267 (1)(b)

A

Validity and interpretation of acts of the EU –> secondary law, validity can be questioned

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Art 267 (2)

A

Discretion to refer

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Art 267 (3)

A

Obligation to refer: COURTS OF LAST RESORT

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

What is a body of last resort under 267(3)?

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Suggested in Costa || applied in Hoffmann

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Lyckeskog

A

Confirmed the Court’s favouring of the concrete approach

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Jacobs AG on 267(3)

A

Difficulty in establishing whether a court is really final

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Development of system of precedent

A

Costa –> CILFIT (held that a previous ruling could be relied upon) –> Foto-Frost

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

ICC - PRECEDENT

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Foto-Frost

A

NC cannot themselves find that EU law is invalid

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Kuehne

A

A ruling under 267 must be applied to relationships BEFORE ruling was given

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Development of the relationship CJEU –> NC

A

horizontal, bilateral relationship developed into a multilateral one due to a system of precedent

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

ACTE CLAIR doctrine

A

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…

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Responses to CILFIT

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Intermodal

A

Reaffirmed CILFIT conditions but declined to extend them

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

R (Countryside Alliance) v AG

A

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”

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Criteria for NC to refer (MS perspective)

A

1) Question raised before court/tribunal of MS

2) Decision on question necessary to give judgement

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

CJEU’s perspective

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Responses to Foglia

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

When has CJEU declined jurisdiction

A

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)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

Language in Art 267

A

language of cooperation but case law changed rhetoric towards more exercise of power by CJEU

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

APPLICATION of treaty

A

CJEU has power to interpret treaty not to apply it, however “guidance” to almost the point of application:
Van Gend
Marleasing

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

Tridmas

A

Relationship of “cooperative federalism”between CJEu and NC

26
Q

“System of precedent”

A

Symbolic advantage: NC become enforces of EU law in their own right –> 96.3% national implementation of CJEU rulings

27
Q

Consequences of a refusal to refer

A

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

28
Q

REFORM: filtering system

A

However, we’re not an appellate system –> there wouldn’t be any decision by an EU court AT ALL

29
Q

REFORM: moving towards an appellate system

A

This still wouldn’t decrease the CJEU’s work load

30
Q

CJEU is NOT a fully developed federal SC

A

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

31
Q

Horizontal, bilateral –> vertical, multilateral relationship

A

Assertion of EU law supremacy
de facto precedent
blurring the line between interpretation and application

32
Q

Van Gend || Costa

A

Creation of a new legal order of constitutionalisation of treaties

33
Q

Arnull: reference procedure

A

CJEU gained insight into practical/legal problems at national level and enabled them to adopt principles of national law –> legitimacy

34
Q

Weiler: reference procedure

A

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

35
Q

Tridimas

A

Art 267 enabled a process of “constitutional rediscovery” of the new legal order

36
Q

Re-allocation of power following Art 267: 3 levels

A

1) supranational level
2) national level
3) within national judiciary

37
Q

Supra-national level: reallocation of power

A

MS governments –> institution of the Community
Van Gend
Costa

38
Q

National level: reallocation of power

A

Executive, legislative –> judiciary
Empowerment of NC:
direct effect - can question own government
indirect effect: strengthening of judicial accountability

39
Q

Within national judiciary: reallocation of power

A

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

40
Q

Schwarze || Bertini

A

“Court or tribunal” capable of making reference widely defined

41
Q

Lourenco || Telemarsicabruzzo

A

References increased and the Court became more assertive in reviewing admissibility –> not enough information/context provided

42
Q

Tridimas: CILFIT

A

Maturity in the development of community legal order - internalisation of principles

43
Q

Treaty of Amsterdam

A

Only last instance courts can seek preliminary reference in some aspects in relation to free movement of persons –> FRAGMENTATION OF PRELIMINARY REFERENCE

44
Q

CONTRA treaty of Amsterdam limitation on Art 267

A

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

45
Q

Tridimas: Why did the treaty of Amsterdam limitations occur?

A

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

46
Q

CJEU’s interventionist role in reviewing admissibility

A

Foglia BUT Foglia = aberration

Preussen Elektra, Arduino

47
Q

Dorsch Consult: definition of court/tribunal

A

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

48
Q

SYFAIT

A

Not sufficiently independent from the state

49
Q

Corbiau: definition of Borsch Consult’s independence

A

Referring body must act as a 3rd party in relation to authority which adopted questioned decision

50
Q

Relaxed “independence” criterion

A

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

51
Q

De Coster - Colorer AG

A

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

52
Q

Schmid

A

Tightened independence requirements and provided more detailed examination

53
Q

Miles v European Schools

A

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

54
Q

Jurisdiction by renvoi

A

CJEU reasserting its jurisdiction despite relevant national legislative measures –> contributing to its own workload

55
Q

Dzodzi

A

Overriding concern to ensure uniformity even though Community law was only tangentially relevant

56
Q

Jacobs AG in Leur-Bloem

A

Doesn’t buy Dzodzi “uniformity” argument: if court is called upon to interpret outside its proper context (community) - will it be binding on NC?

57
Q

Kofisa

A

Cases by RENVOI: NC usually don’t want CJEU jurisdiction

HERE: CJEU established its jurisdiction only to leave the matter essentially to NC

58
Q

CORE OF art. 267

A

UNIFORM INTERPRETATION

59
Q

Nordsee v Reederei Mond

A

Arbitrators are not courts/tribunals

60
Q

Irish Creamery

A

No preliminary ruling because facts had not been resolved

61
Q

Foglia (both)

A

Not a genuine dispute, created to get answer on French tax law (validity) –> matter for NC to decide

62
Q

CILFIT 3 conditions for clarity

A

Acte Clair

1) language translations (interpretation/wording might differ)
2) legal terminology
3) context

EU (Henriette) (5 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions