Preliminary References 1

Question 1

learning obj?

Answer 1

1. To describe the purpose of Article 267 TFEU
2. To describe and apply the test of what constitutes a national court to unseen material- prob q quite stuff lots of test in article 267
3. To critically assess the discretion left to lower national courts in asking for a reference - so treaty make diff types of national ct diff obl duties and sicretion what t critically asses that discretion
4. To critically assess the position of preliminary reference in the EU’s constitutional legal order- this is proecdural law but wouldnt have suprem without this procedure -

Question 2

what is this topic essentially about?

Answer 2

Cjeu says ask me q overtime reject q and treat ms not so well

This lec links to procedural – and links to previous ones

Question 3

learn

Answer 3

learn how to read treaty

Question 4

actions you take in national courts?

Answer 4

Actions in the national courts
Individual action against a State to enforce rights- direct effect

Individual action against a State for damages - against state

Individual action against another individual- horitzontal direct effect

Question 5

actions in the eu courts?

Answer 5

Actions in the EU courts

Judicial review of EU measures (Article 263 TFEU)- action for annulment - only launched in general ct

Damages against the EU (Article 340 TFEU) - dont cover that much on this course allows u to sue eu if breaches ur rights

Enforcement proceedings by the Commission against a State (Articles 258-260 TFEU) - if comm think uk done something wrong bring action against it

Question 6

what were talking about today?

Answer 6

Preliminary reference procedure
Article 267 TFEU

-Abriding art-article 267 prelim reference procedure- action starts in national ct- up to ecj back to national court -

Question 7

what shall we do we stat book?

Answer 7

find Article 267 TFEU: - page? -

Question 8

art tfeu 1st part?

Answer 8

The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:

(a) the interpretation of the Treaties;
(b) the validity and interpretation of acts of the institutions….

Top is what ct can do

Question 9

art tfeu 2nd part?

Answer 9

Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.

Middle – any court may use this procedure (option it’s a discretion and that’s 1 tier of cts)

Question 10

art tfeu 3rd part?

Answer 10

Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.

Bottom- 2nd tier of cts some cts have discretion some cts and some obligation

Question 11

Why study Article 267 TFEU?

Answer 11

Why? This will be key difference in our rels pro Brexit- this process will not exist- but why cos tell something abut nature of eu law and changes that are coming – way ecj grafted their own position- they have abused this article toc reate a whole legal order

Question 12

Why study Article 267 TFEU?- -but they pursue what?

Answer 12

But they purse that hierchy that power insituinal power from a weak absis cos relying on national cts using this- if alienates national cts they will refer and if don’t refer ecj cant make law- ecj narrow tight rope in pleasing national cts but not subserv= rels btw both

Question 13

Why study Article 267 TFEU?- consitution/judicial order?

Answer 13

• Constitution/judicial order making (state liability/direct effect/indirect effect/supremacy etc).

Question 14

Why study Article 267 TFEU?- what about national courts?

Answer 14

• All national courts at all times are applying EU law
• 1st point – therefore need to be mech for them to resolve questions over eu – cos whats danger allowing national cts decing interp themselves – danger = inconsistency why is tht bad

Question 15

Why study Article 267 TFEU? - rels btw ecj and national cts?

Answer 15

• Relationship between the ECJ and national courts
• 2nd – this whole article defines rels –not always been easy rels – so this rels is so strained now that if national ct doesn’t make one of these ref when should do what could u do – u could sue state state lainility

Question 16

Why study Article 267 TFEU? - bridge between ecj and national courts?

Answer 16

• Bridge between ECJ and national courts
• 3rd bridge – very unsual for ecj and national ct to talk – that KEY DIFF btw eu law and most other international agreements

Question 17

Why study Article 267 TFEU?- what about uniformity?

Answer 17

• Uniformity (Drodzi)

4- allows for uniformtity make sure every ct applying law in same way

Question 18

Why study Article 267 TFEU? what is essential for?

Answer 18

• ‘Essential for the preservation of the [Union] character of the law established by the Treaty.’ (Rheinmuehlen)

5 and essential for preservation union char- esstentiall natioanlc ts bring with them national understanding concept- so concept of what company is- concept access to justice is- ecj know treaty has special eu meaning and need to preserve by making sure ecj has last say

Question 19

Why study Article 267 TFEU? - what is next point after essential?

Answer 19

• ‘Any gap in the system…could undermine the effectiveness of the provisions of the Treaty.’ (Rheinmuehlen)
• 6 its an effectiveness argument aswell – did that in stat liability-these principles come up time and time again- start to see underping cts juris in area- direct effect indirect horizontal and icninetal effect, state liability

Question 20

The way to think about preliminary references (structure)?- no.1?

Answer 20

1. What is the purpose of the preliminary reference procedure?

• What is it trying to achieve ? – how effective is enforcement proceeding wnsuring it complies etc – 1 that makes 60 into 70- estab framework for analysis – need to know why u think its effective- what is your underlying yardstick what are u emasruing it against to say its effective- if it achieves its purpose very well then it is effective- if not it is not effective – so try to come up with ways with measuring effectiveness – use words like more /less/very/lesser/more than – nothing worse than saying advantages or disadvantages
  This is my bench mark- this is how I messuring it – Ive measured it – heres the outcome

Question 21

The way to think about preliminary references (structure)?-no.2?

Answer 21

2. Who may make preliminary references?
   - Who must- so talking about every ct and some ct arg

What can they ask – what qs can u ask ecj and what cant u ask – some in treaty some in case law and come across those

Question 22

The way to think about preliminary references (structure)? - no.3?

Answer 22

3. Who must make preliminary references? What happens if they fail to make a reference?
   - Who may make prelim- q of what is national ct and tribunal under eu law- cos those only body can make this ref

Question 23

The way to think about preliminary references (structure)?- no.4?

Answer 23

4. What can they ask?

- Who must- so talking about every ct and some ct arg

Question 24

The way to think about preliminary references (structure)?- no.5?

Answer 24

5. What can’t they ask?

What can they ask – what qs can u ask ecj and what cant u ask – some in treaty some in case law and come across those

Question 25

The way to think about preliminary references (structure)?- no.6?

Answer 25

6. What is the effect of the ECJ’s response?

And what is effect of ecj response- all very well and good ask for q and give u answr- what do you have to do witht hat answer

Question 26

The way to think about preliminary references (structure)?-no.7?

Answer 26

7. Are preliminary references fit for purpose?

Are prelim ref fit for purpose- are they dit or do they need reform?

Question 27

What is the rationale behind preliminary references?- what was said by simmenthal?

Answer 27

Simmenthal:
4 ‘Article [267] is based on a distinct separation of functions between national courts on the one hand and the Court of Justice on the other hand.’

ecj saying no one is superior were all equal but we have diff functions- article 267 way of eplaing those diff functions

Question 28

What is the rationale behind preliminary references?-what are those distinct functions?

Answer 28

What are those distinct functions?

• ECJ – Interpretation in abstract
• National court – Application of interpretation to facts

Question 29

What is the rationale behind preliminary references? - problem about prelim ref?

Answer 29

Problem – often there is not clear distinction btw appl and itnerp

Question 30

What is the rationale behind preliminary references?- THINK: Is there always a clear difference between interpretation and application? (Public health and beer, an example) Should the ECJ ever suggest a solution to the case at hand?

Answer 30

So in gemrany they have bvery pure beer – but that’s german view of beer- so they banned a partic adjtive been put in beer cant sell if have it- someone says that’s a breach of eu law – national ct didn’t no what to do so referred upt oe cj – ecj should be no restrictions unless for public health reason and tha got passed back for antionalc ts to then apply that but the ecj worried about nto given enough guidance so said a total ban of this additive is disporopritonate- u are not allowed total bans of this sort- is that really an interp? On another hand theyre applying that to this case- so lines btw interp and appl often blurred- and soemtiems ecj goes even further so sometimes ecj suggest alternatives-says ur not allowed total ban but may be able to have – strict labelling rules – again that someway s interp of eu law – but what does that lead national ct to apply = nothing and so that distinction clear sep of functions acc sometimes lost – good in theory but sometimes diff to apply

Question 31

What types of question may be asked? - 2 types of qs that can be asked?

Answer 31

1. Interpretation of the Treaties
   - They can aska bout interp of treaty- so what does articl blardy blar require –
2. Validity and interpretation of acts of the institutions
   - Ask about interp of acts of inst and ecj can q validity of acts of inst- what are acts- article 288- what do we mean –give me an act of institution- a regulation or a directive really good- so can ask q about interp or ask about interp and valid of secondary law – and that is so important – massive link to last lecture did with martin article 263 – this provides a limited alternative

Question 32

What types of question may be asked? - what secondary q does that lead to?

Answer 32

Question: Can national courts refer matters that are ‘purely internal’ but that reference EU law?

-whatever say about tony blair – 1 thing he revolutionised the competion law in uk by taking all eu law and applying I uk so it may ref to bits of eu law- q then becomes if u are antonal ct national law infront of u based on eu law can u ask qs – don’t need to cos just national but makes ref to eu – thought answer was no but

Question 33

What types of question may be asked? - what did drodzi say?

Answer 33

Drodzi – ‘it is manifestly in the interest of the Union legal order that, in order to forestall future differences in interpretation, every [Union] provision should be given a uniform interpretation irrespective of the circumstances in which it is to be applied.’

Question 34

What types of question may be asked? - cjeu can what?

Answer 34

Cjeu – it is manifestly – so – basically answr yes- so if youre talking about matter just national law –comp law u can ask ecj qs- cos if u don’t ask questions now a practice may emerge which income with ecj later

Question 35

What types of question cannot be referred? - dont have to know

Answer 35

• Article 275 TFEU: No jurisdiction for measures on CFSP

- Article 276 TFEU: No jurisdiction to review police operations in the area of freedom, security and justice.

Question 36

What is a national court or tribunal?

Answer 36

Wholer art 267 national ct or trib making ref of ecj

So q what is national ct or tribunal for purposes of art 267- hight ct – supreme ct – consititonal ct – county ct]

-Legal test- says supreme ct do not apply test it obvs a ct – what u often don’t do I know legal test and apply no matter what

Question 37

What is a national court or tribunal?

Answer 37

National ct or tribunal much wider than understanding ct is- so u havr this made up body infront of u in exam q- frming licieng committee – normally tell what asking by choice of act – so 1st this is q governed by eu law alone- doesn’t matter what – mattete of eu law alone – national law says this – dorse said …? –

-Question: What do you think the answer is?
Dorsch – ‘a question governed by [Union] law alone.’

Question 38

What is a national court or tribunal?

Answer 38

Factors (legal test):

1. ‘whether the body is established by law’
2. ‘whether it is permanent’
3. ‘whether its jurisdiction is compulsory’ - If you have to abide by judgement
4. ‘whether its procedure is inter partes’ - btw parties needs to be advercsial type dispute
5. ‘whether it applies rules of law’ - Whethe it applies rules of law
6. ‘whether it is independent’- genuianelly is it indep from either of parties – if run by one parties less likely run

Question 39

THINK: Does this surprise you? Why? Or why not?

Answer 39

You don’t need to satify all to be ct or tribunal not a cummulateive test- just in exam 5 out of 6 very lieky to be regarded as national ct tribaunal art 267 – if sat 2unlikely 0 = not

NEED TO COME TO A CONCLUSION TO GET HIGHER QUALITY