Preliminary References Flashcards
Article 267
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
ECSC
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”
I.C.C
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
Bulmer v Bollinger
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
Foto-Frost
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.
Article 267(2)
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
Vassen criteria
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).
Broekmeulen
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.”
Nordsee
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
Danfoss
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.
Miles
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”.
Article 267(3)
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.
Rheinmühlen-Düsseldorf
“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.”
Cartesio
“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.”
Abstract Theory
Only bodies whose decisions are never subject to appeal (e.g Supreme Court)
Concrete Theory
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)
Lyckeskog
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.
Pigs Marketing Board
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.”
Acte Éclairé Da Costa
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.
Acte Éclairé CILFIT
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.
Acte Clair CILFIT
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
Acte Clair Rasmussen
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.
Acte Clair Arnull
CILFIT provides a wide discretion to national courts which can easily be used to justify refusing to refer questions.
Acte Clair Fenger and Broberg Academic, Reform?
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”
