PRELIMINARY REFERENCES 1

Question 1

EU judicial order- what are the actions in eu courts?

Answer 1

Actions in the EU courts

1. Judicial review of EU measures (Article 263 TFEU)
2. Damages against the EU (Article 340 TFEU)
3. Enforcement proceedings by the Commission against a State (Articles 258-260 TFEU)

Question 2

EU judicial order- What are the actions in national courts?

Answer 2

Actions in the national courts

1. Individual action against a State to enforce rights
2. Individual action against a State for damages
3. Individual action against another individual

Question 3

EU judicial order- what is the Preliminary reference procedure
Article 267 TFEU?

Answer 3

Abriding art-article 267 prelim reference procedure- action starts in national ct-

goes up to ecj

then back to national court

Question 4

Article 267 TFEU- what about Article 267 TFEU?

Answer 4

Article 267 TFEU:
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 YOU CAN DO

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)

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 5

Article 267 TFEU-so what about this?

Answer 5

Ct have treated both of those cts differently,changes pos, todays lec will be on what can ecj rue on and considering lowe ct next is higher but one big topic.

3 elements to it

Question 6

Why study Article 267 TFEU? - why

Answer 6

• Constitution/judicial order making (state liability/direct effect/indirect effect/supremacy etc). -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
• All national courts at all times are applying EU law- 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
• Relationship between the ECJ and national courts- very unsual for ecj and national ct to talk – that KEY DIFF btw eu law and most other international agreements
• Bridge between ECJ and national courts -allows for uniformtity make sure every ct applying law in same way
• Uniformity (Drodzi) - 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
• ‘Essential for the preservation of the [Union] character of the law established by the Treaty.’ (Rheinmuehlen) - 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
• ‘Any gap in the system…could undermine the effectiveness of the provisions of the Treaty.’ (Rheinmuehlen)

Question 7

Why study Article 267 TFEU? part 2?

Answer 7

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 8

Why study Article 267 TFEU? - what if you undertsand these principles?

Answer 8

If you understand these princiles already hald way through rev

Question 9

The way to think about preliminary references? - what is the way to think about them?

Answer 9

What is the purpose of the preliminary reference procedure? - 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

-Who may make preliminary references? -This is my bench mark- this is how I messuring it – Ive measured it – heres the outcome

• Who must make preliminary references? What happens
• if they fail to make a reference? - q of what is national ct and tribunal under eu law- cos those only body can make this ref
• 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
• What can’t they ask? - some in treaty some in case law and come across those
• What is the effect of the ECJ’s response? - all very well and good ask for q and give u answr- what do you have to do witht hat answer
• Are preliminary references fit for purpose?- are they dit or do they need reform?

Question 10

What is the rationale behind preliminary references? - what did simmenthal say?

Answer 10

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 11

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

Answer 11

• -ecj there to interpret law in abstract sense – for e.g there should be no customs duty btw ms – ecj just given interp of law – comes into play massively if talk about exceptions to free movements-

ms can restrict movement of goods for security reasons- ecj there to tell us what do we mean by public sec- national ct have diff but equal function

ECJ – Interpretation in abstract

National court – Application of interpretation to facts

-so ecj interp abstract- national ct applies

Question 12

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 12

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 13

What types of question may be asked? - what are they

Answer 13

• Interpretation of the Treaties

- Validity and interpretation of acts of the institutions

Question 14

What types of question may be asked? -what is meant by this?

Answer 14

They can aska bout interp of treaty- so what does articl blardy blar require –

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 15

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

Answer 15

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

Then that leads to secondary q – can national e.g 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 16

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

Answer 16

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 17

What types of question cannot be referred? - not necc

Answer 17

• 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.

DONT NEED TO WORRY ABOUT

Question 18

What is a national court or tribunal? - WHAT?

Answer 18

Question: What do you think the answer is?

-Dorsch – ‘a question governed by [Union] law alone.’

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

Question 19

What is a national court or tribunal? -how do you figure what a national court is?

Answer 19

Factors (legal test):

‘whether the body is established by law’ - the ficitious farming act established this body= tell e dorsch test critiera 1

‘whether it is permanent’ - If perm more than likely ct or triabny

‘whether its jurisdiction is compulsory’ - If you have to abide by judgement

‘whether its procedure is inter partes’ - Whehter procedure inter partes – btw parties needs to be advercsial type dispute

‘whether it applies rules of law’ - Whethe it applies rules of law

‘whether it is independent’ - genuianelly is it indep from either of parties – if run by one parties less likely run
Does ir surprise you?

Question 20

What is a national court or tribunal? -what is a legal test?

Answer 20

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

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 …? –

-Dorsch – ‘a question governed by [Union] law alone.’

Question 21

What is a national court or tribunal? -what about test?

Answer 21

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

Question 22

Activity: What is a national court?

Answer 22

Think about whether the following body meets Dorsch criteria :

• The disciplinary board of the General Medical Council is regulated by statute and meets to hear complaints about medical staff, who may represent and defend themselves. Broekmeulen
• A Parliamentary committee set-up to deal with the passage of a single bill through the House of Commons.
• An official at the Department for Trade and Industry who investigates whether competition law has been

Yes – estab law

Come back later
breached

Question 23

Discretion of lower court? - what about this?

Answer 23

Diff band of cts discretion and cts which obliged

Today took about discretion to refe= lower cts – wide discretion good for rels

-“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.” (Art 267)
Question: How large is the discretion that is left to the lower national courts?

Question 24

Discretion of lower courts continued (II) - the early approach?

Answer 24

Early approach –
Rheinmuehlen: ‘national courts have the widest discretion in referring matters to the Court of Justice’
Irish Creamery: ‘it might be convenient…for the facts of the case to be established and for questions of purely national law to be settled…However, [this does not] in any way restrict the discretion of the national court.’

Outcome: Early cases suggest this is an issue best left to the national courts’ better judgment.

Question 25

Discretion of lower courts continued (II) – what about ecj?

Answer 25

Ecj being polite might be ahelpful before q settle facts- if settled then they can reference but you don’t have to, you can ask us, you have discretion, you refer when you want that defines this early stage- where ct welcomes

And then ecj gets more and more ref and more ms join so more references –ecj start having prob with this

Question 26

Discretion of lower courts continued (III)- Later approach (refusing references!) – what was said in later approach

Answer 26

1. Need for genuine disputes: Foglia – Article 267 TFEU allows the ECJ to give interpretation ‘which is necessary to enable them to settle genuine disputes’
2. Genuine disputes (take 2!): Foglia (No 2) – it is for the ECJ ‘in order to confirm its own jurisdiction, to examine…the conditions in which the case has been referred.’ (What about Rheinmeuhlen??)
3. Hypothetical/contrived disputes: Meilicke
4. Poor quality references: Telemarsicabruzzo – national courts should ‘define the factual and legislative context of the questions it is asking.’

Question 27

Discretion of lower courts continued (III)- Later approach (refusing references!) – interpreted? in my words?

Answer 27

Later approach – national ct makes ref and ecj says not answering that – very testing time btw rels btw cts –ecj said need to be genuine dispite

Italian case – both parties case agreed unfair said eu law should be chall so got together said – go ct try prelim ref get answer- ct justice said not answering has to e genuined dispute – has to be genuine inter parte – ct said artcle 267 allows interp to s settle gen dispute said no not answ

Italian jusge went happy and wrote back to ecj saying I need to answet his q – ecj said annoyed for ecj in order for it to confer own juris to exami con- said u need to answr Italian said that- but ecj said we decide and in order we look at conditions – change from earlier approach – ecj want more control

Meli- wont answer hypothetical q – q npt need to resolve case before national ct – cant make dispute where one doesn’t exist- that stop people like me make random q for ecj – veryeeasy to manufacture dispute and go to ct
Poor wual- so if not very well written ecj wont answer – ref need to be well written If noy not listening

Ct exccercisng more control and why? – whts problem with national coming up with contrived –c all that hiercahl rels shift to hiercahl – higher cts come out even more strongly

Question 28

Discretion of the courts (IV): Dictating the form of reference - ecj guidance?

Answer 28

ECJ Guidance Note for preliminary references (2012/2016) –sorts of things discussed:

1. A statement of reasons ‘succinct but sufficiently complete’ and ‘it should be drafted simply, clearly and precisely, avoiding superfluous detail.’
2. ‘a maximum of about 10 pages is often sufficient’
3. A statement of the facts.
4. ‘an exposition of the national law’
5. ‘a statement of the reasons which have prompted the national court to refer the question’
6. ‘a summary of the arguments of the parties’

Question 29

Discretion of the courts (IV): Dictating the form of reference -ecj guidance in other words?

Answer 29

Ecj issued guidance notice in writing and drafting prelim references
That could be guidance write exam
2.
3.
4. give us ur understandin of national law
5. why do u think necc for us to give u answr
What do parties think

Question 30

Discretion of lower courts: the national perspective- factors stated by denning and bingham? 1?

Answer 30

Think have our cts fiven guidance how they may handle ref

-Denning in Bulmer (early approach) – Number of factors: - Lord denning – weren’t big fan of eu law
This is not approach now taken

Time to get a reference - look at how long it takes for reference – uloe value if too log

Workload on ECJ - Think about whether difficult point of law or not just have a god

Difficulty and importance - If not terribly important don’t make ref

Expense - not cheap bc workinglang French sou nless ur barrister speaks French expensive

Wishes of the parties - Wishes of aprties if neither parties want this just jabe a go

Question 31

Discretion of lower courts: the national perspective- factors stated by denning and bingham? 2?

Answer 31

• Bingham in Samex (accepted later approach) - – best judge every had – updated approach said lord denning actuallt we should e making more ref’
  1. ‘Panoramic view’ of ECJ - Ecj parnaormic ecj
  2. Expertise (in purposive interpretation & substance) - just haea go – resons we have xperts
  3. Links to other institutions - commsion can join in
  4. Language issues - back to later-just cos looks clear English trans doesn’t mean easier to answer in other lang- eu so many lang and each 1 equally authentic – and hughe alng- so in English 2 diff in words frrench doesn’t exist and this casues probs

Question 32

Why does it matter so much in English Law - why?

Answer 32

Why does it matter so much – bc effect prelim ref

Question 33

Why does it matter so much in English Law - what was said in case?

Answer 33

Case C-173/09 Georgi Ivnov Elchinov, judgment of 5 October 2010:

‘the national court, having exercised the discretion conferred on it by the second paragraph of Article 267 TFEU, is bound, for the purposes of the decision to be given in the main proceedings, by the interpretation of the provisions at issue given by the Court and must, if necessary, disregard the rulings of the higher court if it considers, having regard to that interpretation, that they are not consistent with European Union law.’

National ct didn’t hae to but made ref, is bound by..r.a.w – what? – what does that mean in English law – comes back to spec interp- allows court of appeal to disregard any bidnign precendt of supreme ct – whole basis is precent even if wrong ??

Question 34

Why does it matter so much in English Law -what about the case?

Answer 34

This huge- common law essentially wiped away in judgement-uk bound by this reason – disrupt eniter legal order – who u think like this locals like this just like satte liability-mecj winging around lower ct- supreme or higher doesn’t like it – one of reasons why people don’t like eu law cos changes things quite dramatically

Question 35

HOW WOULD YOU TACKLE THIS AS PROBLEM Q?

Answer 35

Think self as gro through exam on left side
Yes – cant make refernce theres no q –
2. mjust apply critiera if any uncertsainty
Is this genuine dispute
Is this likely to get rejected

1. Does the law in question raise issues of EU interpretation or validity?
2. Is this a court or tribunal? You must apply the factors
3. Is this a genuine dispute?
4. Does the Court have enough information to come to a judgment?

NOTE: It is likely that problem questions will be based on combination of this and the next lecture!

Question 36

HOW DO YOU TACKLE THIS AS ESSAY?

Answer 36

Essay:

Which issues are controversial?

Which issues are complex?

Think in advance how well preliminary references achieve their aim.

What is academic opinion of the procedure?

What are the problems that arise in application?

What does it tell us about the judicial structure/hierarchy of the EU?

Question 37

ACTIVITY?

Answer 37

Think about what the current position on the discretion of lower courts tells us about the relationship between national courts and the ECJ?

Question 38

overall of lecture?

Answer 38

To describe the purpose of Article 267 TFEU
To describe and apply the test of what constitutes a national court to unseen material
To critically assess the discretion left to lower national courts in asking for a reference
To critically assess the position of preliminary reference in the EU’s constitutional legal order