Preliminary References

Question 1

Article 267

Answer 1

The CJEU have jurisdiction to give preliminary rulings concerning:

a) the interpretation of the treaties
b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union

Question 2

ECSC

Answer 2

Preliminary references “express a two fold need; to ensure the utmost uniformity in the application of [Union] law and to establish for that purpose effective cooperation between the CJEU and the courts”

Question 3

I.C.C

Answer 3

EU regulation on skimmed milk stocks previously found invalid, was this earlier judgment of invalidity effective only in the MS referring the question? Uniformity of EU law is central, the decision has a multilateral effect and applies in all MS

Question 4

Bulmer v Bollinger

Answer 4

In applying the treaty, English judges have the final word. Before they can apply the treaty they have to decide what it means and its effect. In interpreting a treaty, English judges are not the authority and ECJ is the Supreme tribunal

Question 5

Foto-Frost

Answer 5

Could a national court declare a commission decision to be invalid? Courts and tribunals may consider the validity of a Union Act, they can declare an Act to be valid but not invalid and they have to refer it.

Question 6

Article 267(2)

Answer 6

Where such a question is raised before any court or tribunal of a MS, 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

Question 7

Vassen criteria

Answer 7

Relevant factors: permanent, compulsory jurisdiction, inter partes procedure (adversarial procedure allowing legal representation), should apply rules of law (legislative and common law), independent (no organisational link between the parties Schmid).

Question 8

Broekmeulen

Answer 8

Heard appeals from a lower body, potential right of appeal to courts but that had never been used, private association, adversarial procedure allowing representation, not recognised as a court or tribunal under dutch law. Held: it was a court or tribunal “In the absence in practice of any right to appeal to ordinary courts, committee operating with the consent of authorities with their cooperation, delivers a decision as final, must be considered a C to T within Article 267.”

Question 9

Nordsee

Answer 9

Shipbuilding project agreed in a dispute they would go to an independent arbitrator. Authorities were not involved and this was not held to be a C or T due to the voluntary nature and this was a private matter with a right to appeal

Question 10

Danfoss

Answer 10

Equal pay claim, proceedings brought were before a Danish arbitration board. Could they refer questions to the CJEU? This was held to be a C or T as under Danish law disputes were required to go through an arbitrator and jurisdiction was compulsory.

Question 11

Miles

Answer 11

Challenge by UK teachers on secondment to EU schools about their rate of pay. Was the complaints board of the EU schools a C or T? Despite satisfying the Vassen criteria, the body did not fall within 267 as if was not “of a Member State”.

Question 12

Article 267(3)

Answer 12

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

Question 13

Rheinmühlen-Düsseldorf

Answer 13

“National courts have the widest discretion in referring matters to the Court of Justice if they consider a case pending before them raises questions involving the interpretation or consideration of the validity, of provisions of [Union] law, necessitating a decision on their part.”

Question 14

Cartesio

Answer 14

“In accordance with 267 the assessment of the relevance and necessity of the question referred for a preliminary ruling is, the responsibility of the referring court alone. It is for the referring court to come to a conclusion as to whether it is appropriate to maintain the reference for a preliminary ruling or to amend it or withdraw it.”

Question 15

Abstract Theory

Answer 15

Only bodies whose decisions are never subject to appeal (e.g Supreme Court)

Question 16

Concrete Theory

Answer 16

Any body where the court or tribunal’s decision is not subject to appeal in the type of case in question (e.g Costa v ENEL there was no right of appeal as the monetary sum was too low)

Question 17

Lyckeskog

Answer 17

Appeal from appellate court to Supreme Court depended on permission from the Supreme Court. Did the appellate court fall in 267(3)? The obligation to refer is “designed to prevent a body of national case law not in accordance with Union law from coming into existence.” Concrete theory affirmed, key factor is whether there is a right to appeal, not abstract as it would make it possible for many cases to never reach the CJEU.

Question 18

Pigs Marketing Board

Answer 18

Only have to refer a question they feel is necessary Article 267(2). “The national court, is in the best position to appreciate the full relevance of the questions of law raised by the dispute and the necessity for a preliminary ruling.”

Question 19

Acte Éclairé Da Costa

Answer 19

Question was whether Article 30 TFEU had direct effect, the same question as Van Gend en Loos. Under Article 267(2) any court may refer a question, the court was free to do so but if there is no new factor the court will restate its previous ruling.

Question 20

Acte Éclairé CILFIT

Answer 20

Dispute over whether or not certain duties were allowable under free movement law. Ministry of Health argued the answer to the question was so obvious as to remove the requirement to refer. Extends Da Costa principle to similar questions.

Question 21

Acte Clair CILFIT

Answer 21

Where the interpretation is “so obvious as to leave no scope for any reasonable doubt” the obligation to refer does not apply. Must consider: different language versions, EU’s own terminology, context of EU and light of EU as a whole

Question 22

Acte Clair Rasmussen

Answer 22

CILFIT was based on a strategy of ‘give and take’ appearing to give discretion to national courts through acte clair but in practice limiting discretion through strict requirements.

Question 23

Acte Clair Arnull

Answer 23

CILFIT provides a wide discretion to national courts which can easily be used to justify refusing to refer questions.

Question 24

Acte Clair Fenger and Broberg Academic, Reform?

Answer 24

The requirements are difficult to fulfil in modern Europe and the political/legal situation has changed as such that they are no longer necessary. Acte Clair should require only that the result does not give rise to “appreciable doubt”

Question 25

UK Perspective Bulmer v Bollinger

Answer 25

In England the trial judge has complete discretion. If he decides the EU court cannot interfere, the CJEU ruling will not be necessary where there has been a previous ruling on an issue or where the answer is “reasonably clear and free from doubt”.
6 factors to take into account: 1. Time to get a ruling, 2. Importance of not overloading the EU, 3. Need to formulate the question clearly 4. Difficulty/Importance of the point 5. Expense 6. Wishes of the parties

Question 26

R v International Stock Exchange ex p Else

Answer 26

“If union law is crucial to the court’s final decision, the appropriate course is ordinarily to refer the issue to the court of justice unless the national court can with complete confidence resolve the issue itself”. When deciding, should bear in mind, differences between EU/national legislation, danger of ruling in an unfamiliar field, need for uniform interpretation, advantages of CJEU in relation to EU legislation.

Question 27

Foglia v Novello I

Answer 27

As the parties had set up their business in order to challenge the French tax in Italian courts the CJEU refused to give a ruling as the facts were artificial.

Question 28

Foglia v Novello II

Answer 28

Italian judge tried again referring to the extent of the discretion of national courts to refer questions, emphasised the court would not entertain hypothetical cases.

Question 29

Craig and de Burca

Answer 29

CJEU is not a passive receptor and can assert some control over suitability of a reference.

Question 30

Meilicke

Answer 30

Challenge to German law on non-cash contributions, inconsistent with the Banking Directive. Bank argued the questions were irrelevant to the issue at hand. CJEU refused to rule as it was not proven to be necessary.

Question 31

R v (Phillip Morris Brands)

Answer 31

Questions concerning EU law enjoy a presumption of relevance, court may refuse to give a ruling only when it is quite obvious the interpretation bears no relation to the facts. “Essential the national court sets out its precise reasons why it considers it necessary to enable it to give judgment”.

Question 32

CJEU Recommendations to national courts on required information

Answer 32

Subject matter of dispute, relevant national law, relevant EU provisions, why the national court referred the matter, relationship between national rules and EU law, summary of parties’ arguments.

Question 33

Impact of the preliminary reference procedure

Answer 33

Forged a link with national courts and the EU courts system, accords national courts the opportunity to familiarise themselves with EU legal order, been used to develop EU legal system and constitutionalise the Treaties, extend the effectiveness of EU legal order

Question 34

Advantages of Article 267

Answer 34

Access to CJEU for individuals, avoids problems with judicial review under 263(1)

Question 35

Disadvantages of Article 267

Answer 35

No intervention of EU institutions, interim protection only in the MS of the referring court, at discretion of national courts