Preliminary references

Question 1

When MUST a preliminary reference be made

Answer 1

When the question arises before a court of last instance (except when its an acte claire or act eclaire)

Question 2

The case that says that even where the ECJ has struck out EU law for illegality, a domestic court cannot strike out identical law for illegality

Answer 2

Schul

Question 3

How is the application and interpretation of EU law divided between the courts?

Answer 3

The application of EU law is entirely the preserve of the national courts, the interpretation of EU law is a question for the ECJ: Simmenthal

Question 4

The case that says that other MSs are bound by preliminary rulings

Answer 4

ICC

Question 5

What is the definition / principle of preliminary references?

Answer 5

A procedire whereby domestic courts can refer questions to the ECJ regarding a) the interpretation of the treaties; or b) the validity or interpretation of acts of the EU institutions

Question 6

The case that says that if an individual has standing under Art 263, they can’t bring a case domestically to get a preliminary reference

Answer 6

TWD (this prevents the preliminary reference procedure being used to get around the strict time limits imposed on Art 263 proceedings)

Question 7

What is a “court” for the purposes of the preliminary reference procedure

Answer 7

Dorsch Consult: It is for the ECJ to decide, but factors include whether it’s independent, whether it applies the rule of law; whether its decisions are binding, whether it’s permamanent, whether it was established by law

Question 8

Law regarding what subject matters cannot be referred to the ECJ under the preliminary reference procedure? (and where does it say so in the treaty)

Answer 8

Foreign and security policy, police, law enforcement (Arts 275 and 276)

Question 9

What case explains that it’s up to the domestic court to decide whether to settle domestic law issues before or after obtaining an opinion from the ECJ under the preliminary reference procedure

Answer 9

Irish Creamery (illustrated the discretion allowed to national courts)

Question 10

What must be included in a preliminary reference?

Answer 10

1997 guidelines: the facts, an explanation of the relevant national law, the reasons for the reference, (where appropriate) a summary of the arguments

Question 11

A case which illustrates the wide definition of “court” for the purposes of Article 267 preliminary references

Answer 11

Broeckmulen: A medical regulation authority WAS a court/tribunal because a) it determined individual rights under EU law b) it was supervised by the government and c) it employed legalistic procedures

Question 12

When will the ECJ refuse to give a ruling under the preliminary reference proceudure

Answer 12

When the case is manufactured / hypothetical (Foglia), where the reference contains insufficient information (Telemassicabruzzo)

Question 13

What case originally set out the circumstances in which a court of last instance need not make a preliminary reference?

Answer 13

Da Costa: Where the issue in question is materially identical to one already ruled upon by the ECJ, there is no duty to refer

Question 14

What article encompasses the preliminary reference procedure?

Answer 14

Article 267 TFEU

Question 15

The case that says a domestic court cannot declare EU law illegal, even where acte clair seems to apply

Answer 15

Foto Frost

Question 16

Which case built upon the Da Costa ruling to introduce the doctrine of acte clair

Answer 16

CILFIT: The issue at hand need not be strictly identical, it is sufficient that it be analogous AS LONG AS the answer woudl be equally obvious to other MSs courts taking into account different translations, the fact that certain words may have a different technical meaning in EU law to the one in domestic law (terms of art)

Question 17

When may a preliminary reference be made by a lower court?

Answer 17

It’s entirely at the court’s discretion (Rheinmulen: “national courts have the widest discretion” - national legislation cannot prevent the making of references)

Question 18

What article governs the preliminary reference procedure

Answer 18

Article 267 TFEU

Question 19

The case that says that a court of last instance is the last court of appeal in the case IN HAND (concrfete theory)

Answer 19

Lyckeskog