Preliminary Referencing

Question 1

CJEU can decide on 2 types of cases… plus article

Answer 1

Art 267(1) TFEU
interpretation of treaty
validity and interpretation of acts of the institutions, bodies, offices or agencies of the union

Question 2

difference between application and interpretation plus case

Answer 2

bulmer v bollinger
application - NC have final say
interpretation - CJEU have final say

Question 3

validity and invalidity of union law (2) plus case

Answer 3

firma foto-frost
NC can declare eu law valid, but not invalid
CJEU has exclusive discretion to declare eu law void

Question 4

who can refer a q to cjeu? plus article

Answer 4

art 267(2) TFEU
any court or tribunal of a MS

Question 5

what is a court/ tribunal? (5) plus 2 cases

Answer 5

Vaassen criteria

• permanent
• compuslory jurisdiction
• inter partes procedure
• should apply rules of law
• independent; no organisational link to parties - Schmid

Question 6

early cases took a ___ view of court/ tribunal plus case

Answer 6

narrow view

Nordsee - arbitrator not C/T

Question 7

later case have taken a ___ view of court/ tribunal plus case

Answer 7

broader view

Danfoss - arbitrator was C/T

Question 8

“Of a MS” case

Answer 8

Miles v Ecoles

Question 9

Discretion to refer 
art 267(2) TFEU plus case

Answer 9

all courts MAY refer

Cartesio

Question 10

duty to refer 
art 267(3) TFEU

Answer 10

“against whose decision there is no judicial remedy under national law” MUST refer provided the decision is necessary to enable a judgement

Question 11

duty to refer
art 267(3) TFEU
abstract theory

Answer 11

only bodies whose decisions are never subjected to appeal e.g. Supreme Court

Question 12

duty to refer 
art 267(3) TFEU 
concrete theory plus case

Answer 12

any body where C/T decision isnt subject to appeal in the type of case
Costa

Question 13

Bulmer v Bollinger factors for courts to consider when deciding whether or not to refer a Q (6)

Answer 13

time to get ruling
importance of not overloading CJEU 
need to formulate Q clearly
difficulty and importance of point
expense
wishes of parties

Question 14

R v International Stock exchange; when deciding whether or not to refer, should bear in mind… (4)

Answer 14

differences between national and eu law
danger of ruling on an unfamiliar field
need for uniform interpretation
advantages of CJEU in relation to EU interpretation

Question 15

references arent required where (3)

Answer 15

EU Q is irrelevant to case
CJEU has already answered q - acte eclaire
answer is obvious - acte clair

Question 16

irrelevant qs (2) plus case and article

Answer 16

Art 267(2) TFEU
only need to refer if answer is necessary
duty of national court to assess relevance
pigs marketing board

Question 17

acte eclaire 2 cases

Answer 17

joined costa - same q as in van gend en loos

Question 18

acte eclaire CILFIT

Answer 18

where correct interpretation of eu law is so obvious theres no reasonable doubt, obligation to refer doesnt apply

Question 19

what is acte eclaire

Answer 19

CJEU has already answered it

Question 20

acte eclaire CILFIT

national courts must be sure that the answer is

Answer 20

equally obvious to CJEU and other national courts

Question 21

acte eclaire CILFIT

when determining if the answer is obvious, national courts must consider (3)

Answer 21

different language versions of other provisions
the fact eu law has its own terminology
provision must be considered in context and interpreted in light of eu law as a whole

Question 22

what is acte clair

Answer 22

answer is obvious

Question 23

acte clair 2 cases

Answer 23

X and Van Dijk

Question 24

acte clair

if a lower court has referred a q to CJEU…

Answer 24

if lower court has referred a q to CJEU, the higher court hearing the appeal can still decide the issue falls in acte clair and decide itself

Question 25

acte clair

Ferreira de Silva

Answer 25

the fact lower courts have taken conflicting views on an issue doesnt prevent a higher court from finding the issue falls in acte clair