PRELIMINARY REFERENCES 2 Flashcards
what did we do last week?
Last week looked at prelim ref lower cts- any ct can make reference to echr on matter of interp of treateies or on interp and validity of eu law, of secondary acts of institution, today were gonna focus on something different, dfife
learning objectives?
- differentiate between lower and higher courts for the purposes of Article 267 TFEU preliminary references
- To understand and critically evaluate the CILFIT criteria
- To assess the relationship between national courts and the European Court of Justice
- To evaluate proposals for the reform of the preliminary reference procedure
Learning objectives in other words?
r. a.w – crucial disting feature- and disting feature that impacts heavily on rels btw cts and eu – so lots of discussion around supremacy and sov – comes down to higher cts const cts talking to echr
- need to be able to under r.a.w – crtitera legal test to apply when national cts face with q of eu law which feel have to refer up to ech justice
- to asses- hierarchy system ecjustice set up in light of text of treaty= critically analysis part
Finally to eval, proposal for form of prelim ref procedure, even when I was student, reform of prelim ref was on table, was massive thing, everyone says system broken hughe prob, and yet system continues – ocnenr as cts were used to applying eu law = prelim ref overwhelm ct – that’s hasn’t happen, time to get prelim ref remained steady
LECTURE RECAP?
- What is Article 267 TFEU?
What is a national court or tribunal?
How much discretion do lower courts have in making a reference?
-Art 267- mech national cts can ask q to ech justice- echjsutice give asses and passes back applc to national ct
What national ct- estab law- permant inter parte in nature applies law
Talked about discretion of lower cts- lower cts acoridng to treaty cana sk anything – echjustice welcomed lots of references- askw hat u want when u want- overtime echr change approach – later cases malika , 1 & 2 started to reject references- badly written contrived and no genuine dispute
How English cts deal with whether should or shoul not make reference
Talk about being potential broad discretion but they’ve narrows echjustice case law narrowed discretion
Higher courts- WHAT does art 267 say?
Article 267 TFEU
‘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’
Higher courts- so what we doing today?
- Today other limb article 267 – against whos decision no judicial – ct /tribunal shall bring matter to ct – no right to appeal – SHALL
- If youre a final ct and matter intep arises you have no choice – you have to make ref- see that’s acfc not quite true –e chr given final national cts – dsicreiton where no discretion should exist
How do we know which court is a ‘final court’? - how do we work it out
How do you work out final ct- know supreme ct has to makre ref- but what was the legal test- was or not final ct – no right to appeal- interesting bc supreme ct not only ct in uk where that may happen- can u think another ct where u may ptoetnially not have right to appeal
So do you always have right to appeal from coa to supreme ct- is appal always granted? Supreme ct will always listen, 2 mech can have an appeal? – yes leap frog ??? High ct to??? 2 cricum which u can appeal
How do we know which court is a ‘final court’?- what are the 2 theories?
The ‘concrete’ and ‘abstract’ theories
-You appeal directly to supreme ct – they have prelim hearing, decide whether u have grounds for appeal / the ct if appeal itself may grant u a right to appeal. May give leave to appeal but idf supreme ct denies leave to appeal, and coa appeal judges deny- ct of appeal becomes final ct for those proceedings- therefore 2 theories we could apply to which is final ct- who is bound by obli
How do we know which court is a ‘final court’?-what is teh 2 test?
2 test= concerte an abstract test
What we just described is cocnerer- where on r.a.w –
How do we know which court is a ‘final court’?- what is meant by concrete?
Concrete
Where, on the particular facts, no appeal is available, that court is a final court (e.g. Court of Appeal where no leave to appeal is granted)
that ct is final ct therefore ct must refer q’s of interp – so coa in certain cases under obl to refer
How do we know which court is a ‘final court’?- or what could you have?
-Or you could apply abstract theory – just supreme ct – ecj cprrect response is concrete theory – so look at facts of case- if this court is de facto – final ct of appeal then they have obl to refer
So not just static list of courts it changes depending on fact sf case - abstract is crossed off?
How do we know which court is a ‘final court’?- what did ecj say?
ECJ response: Lyckeskog – the concrete theory is the correct interpretation of Article 267 TFEU.
When not to refer?- what does it mean by this?
Wording 267 annoying- shall refer – meaning you don’t have a choice – that’s what we said in middle which was that the woriding of treaty pretyy- problem when wording pretty clear – coj messes about with it- direct effect doesn’t exist supremacy doesn’t state liability for ms breaches eu doesn’t exit so coj creates it- even wehre stuff is created0 the ct messes about with it- the treaty says you have to refer- but there are actually 3 circum wehre u don’t have to refer but this is the nature of ct- the ct is adding flesh to bones of treaty- someways chaning bones of treaty in first place
3 circumstances?
1) When the same/similar question has been already answered. Da Costa and Van Gend en Loos
2) When the question is irrelevant
3) When the answer is acte clair (CILFIT)
1st circumstance in depth?
1st cirum- don’t have to make ref- even though treaty suggest u do – is wehre same or similar q answered
So court in da costa – they asked essentially exactly same q asked in van den go lloss- if we already answer this q the exact q don’t need to ask again look at other case law
Ct also said if we answered similar q but clear are same funameantl principle you do not need to ask us again- what does that look like to you – does look like precedent- exactly what ct trying to say – specific case but also general applic but you have to remeebr even tho precedent most of cournteis in eu are not common law jurisdic – this was bit of shock tot hem bc not necc how civil law systems work like France- but we all except it- 2nd time-
2nd circumstance?
2nd – don’t ned to ask if q irrelevant- have to be necc to determine case – just bc have q doesn’t mean you have to refer it if not relevant to u answering the q – nto rel to u deciding case clear e.g is hs2 case – int q eu law- eu law takes priorty bc over confli national alw that eca has concsitutional status – cosnt statutes take priority over normal stat- hs2 q in human law what if cosnt stat like esa comes into conflict with another const principle – eca and parl privilegae at stake here – people like pelase refer- q irrelevant to proceedings – fairly standard need to know both
3rd circumstance?
Really need to know 3RD- WHERE IS ACTE CLAIR –comes from suffilt case – do not have to make refern final ct if ANSWER IS VERY CLEAR- IF IT IS A CLEAR ACT- OBIVIOSU DOTN NEED TO ASK Q – seemingly giving over control to national courts – coj – dotn need to keep asking if clear
