Preliminary Reference Procedure Flashcards
Chronology of PRP
1) National court requests a ruling on a point of EU law
2) Case is referred to the CJEU
3) CJEU decides point of law referred only and does not decide dispute
4) National court decides dispute in light of reference decision
Arsenal FC v Reed
- CJEU does not provide final decision, national court does
- National court received opinion from CJEU but judge disagreed
Article 267 TFEU
- The CJEU has jurisdiction in preliminary rulings concerning:
a) The interpretation of the Treaties
b) Validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union
Doris Slatzmann
Court of tribunal established; court should consider:
- whether the body is established by law
- whether it is permanent
- whether it’s jurisdiction is compulsory
- whether it’s procedure is inter partes
- whether it applies to rules of law
- whether it is independent
Broekmuelen
established that the defenition should be broad and include bodies that are not formally courts within the national legal system
- in this case, application to the Dutch Medical Association was refused
- appealed to a committee which was not considered a court of tribunal
- ECJ held that it could be considered a court of tribunal asi) determined individual rights and its decision was final with no right of appeal to the ordinary courts
ii) acted under government legal supervision
iii) employed quasi-legal procedures
El Yassini
Office of Immigration Adjudicators was seen as a court of tribunal
Firma Fotofrost
- Commission decision relating to import duties on binoculars was challenged before a Hamburg Finance Court on the grounds that it conflicted with German legislation
- Asked if they could declare it invalid
- No MS had the power to declare Community law invalid
Foglia v Novella
- Litigation was between two Italian parties
□ Foglia an Italian wine producer
□ Novello the buyer, who resided in France - They had agreed in the contract that Foglia should not bear the cost of any duties levied by the French
□ Foglia was then charged tax - Proceedings were entirely artificial
- ECJ refused to give ruling
Bacardi-Martini v Newcastle
- Ad conformed with English law but not French
- Court viewed the arguments as hypothetical
- Dismissed the referral
Mandatory Reference
- a mandatory reference arises where question is raised in a case pending before a court or tribunal of a MS against whose decisions there is no judicial remedy under national law
CILFIT
- Group of textile firms challenged levies on wool importation from outside the EU
- Question was whether wool was an animal product
- acte claire principle (so obvious it does not need referring)
Lyckeskog
- Plaintiff was prosecuted for importing rice into Sweden without paying customs
- Argued that the relevant EC regulation allowed for such importation for personal use
- No automatic right of appeal to the Swedish Supreme Court
- Court of Appeal referred a question to ECJ as to whether the COA would be considered a ‘final court’ if it refused the plaintiff permission to appeal it’s decision to the Swedish Supreme Court
- Held that the Swedish Court of Appeal was not obliged to make a reference but the Supreme Court was
No obligation to refer question if
- acte claire
- it is hypothetical
- court has already ruled on the matter
- referral not necessary or relevant for national court to decide case
Ministry v Coehn-Bendit
- Coehn-Bendit challenged a deportation order by France
- No need for reference as the question had been answered in Van Duyn v Home Office
Rheinluhlen
- German cereal exporter attempted to get an export tax rebate under Union law
- In an earlier appeal, the Federal Court had quashed the lower tax court’s decision and referred the case back to the lower court for a decision to certain questions of fact
- German tax court was not satisfoed with Federal tax court’s decision
- Sought ECJ ruling on a point of Union law as to whether it was permissible for a lower court to refer when a superior court had already reversed its decision on appeal
- Held the lower court must be free to make a reference if it considers that the superior court’s ruling would lead it to give a judgement contrary to Union law
Commission v Ireland
An interpretation under Article 267 ought to be understood and applied from the time of the provision coming into operation
Khune & Heitz
- The plaintiff’s claim for reimbursement of export funds was rejected by the Dutch authorities
- A subsequent ECJ ruling in another case rendered this incorrect
- Sought to have case re-opened
- It was based on a misinterpretation of Community law
European Commission v France
CJEU held, as part of an infringement procedure, for the first time that a domestic court of last instance was in breach of its EU law obligation to refer preliminary questions since the interpretation of EU law in this case was not obvious
