Preliminary References

Question 1

Where can you find the Treaty base for preliminary references?

Answer 1

Article 267 TFEU

Question 2

What are the purposes of the preliminary references procedure under Art 267 TFEU?

Answer 2

• Guarantee uniformity of EU law by giving a ‘Union interpretation’
• protects constitutional qualities of EU law e.g. Supremacy
• Enables judicial dialogue between CJEU and national court

Question 3

What happens when a national court makes a preliminary reference to the CJEU?

Answer 3

National court proceedings get suspended until response.

Question 4

Who can refer questions to the CJEU under Art 267?

Answer 4

Any court or tribunal

Question 5

What is the criteria for a court or tribunal under Art 267?

Answer 5

• should have official recognition
• makes binding decisions
• performs a judicial function
• independence
• permanence

Question 6

In which case was an appeals committee for the Dutch medical association held to have met the criteria under Art 267 as a court or tribunal because it decided registration required for practice, even though the national court did not recognise it as such?

Answer 6

Broekmeulen

Question 7

In which case was it held that a private arbitrator could not be a court/tribunal as the parties agree to refer the case and the decision is not binding?

Answer 7

Nordsee

Question 8

When should a reference be made to the CJEU in the case of a court of last instance? And in the case of lower courts?

Answer 8

Court of last instance - duty to refer where decision is final if necessary to give judgement
Lower courts - discretion to refer

Question 9

Which case indicated that national courts are not bound to accept the CJEU’s judgment?

Answer 9

Arsenal FC v Reed - Laddie J considered CJEU to be applying facts to case not just interpreting EU law so disregarding anything considered as fact. Subsequently overturned by CA.

Question 10

In Bulmer v Bollinger, which facts did Lord Denning suggest be considered before making a preliminary reference?

Answer 10

• inconvenience
• avoid overloading CJEU
• difficulty of formulating a clear question
• difficulty and importance of provision in question
• expense
• wishes of parties in case

Question 11

In which case, did Lord Bingham, overrule Denning’s guidance in Bulmer and Bollinger and say that the only consideration before making a preliminary reference should be whether the national court has ‘complete confidence’ in its ability to interpret the EU law?

Answer 11

Ex parte Else

Question 12

In which case did the CJEU decide that the national court was not entitled to decide that the case law was clearly settled and not make a preliminary ref?

Answer 12

Köbler

Question 13

In which case did a failure of the Italian last court of instance amount to state liability?

Answer 13

Traghetti

Question 14

What are the CILFIT conditions which excuse a court of last instance from not making a preliminary reference?

Answer 14

• question of EU law is irrelevant to case
• provision has already been interpreted by CJEU
• correct application of EU law is so obvious as to leave no room for reasonable doubt

Question 15

What is the principle of acte clair?

Answer 15

That the law is so clear that there is no need to seek clarification from the CJEU.

Question 16

In which case did the CJEU rule that it was unnecessary to make a preliminary reference when the facts were virtually identical to Van Gend en Loos?

Answer 16

Da Costa

Question 17

In which case did the HL warn the CA about being too keen not to refer, even when they thought measure was clearly a quantitative restriction?

Answer 17

Henn and Darby

Question 18

Which case established that the question of the ref must not be hypothetical?

Answer 18

Fogalia v Novello (No 1)

Question 19

Which case established that the question must be necessary for the national court to be able to give a judgment?

Answer 19

Sagoil SA

Question 20

What is the most simple requirement of the question made in preliminary ref?

Answer 20

It must be relevant!

Question 21

In which case did the CJEU decide that where the facts and legal context were unclear it amounted to an irrelevant question?

Answer 21

Meilicke v ADV

Question 22

Which case established that the making of a preliminary ref must not be an abuse of procedure?

Answer 22

Matteus

Question 23

Who makes the preliminary reference to the CJEU?

Answer 23

The national court.

- not the parties!