Preliminary Rulings and Judicial Review Flashcards
Notes on seminar 1
Notes
• Remember the shape of the legal order – the SC at the top and the national courts below.
• We also talked about judicial dialogue and to what extent does it make the nature of the legal order more of a horizontal relationship?
• And we are also interested in the division of responsibility –
Preliminary references – describing them
• A form of indirect challenge, as it is not the claimant who is bringing a claim but the national court.
• The five legal question to ask when determining a preliminary ruling:
o 1. Does Article 267 apply?
o 2. Is the referring court 267?
o 3. If it is an Art 267 court, does it fall under (2) discretion or (3) obligation?
o 4. If it has an obligation or discretion in either way, are there any discretion or obligations to refer.
o 5. Having analysed the exceptions, we then have the issue of state liability.
Breaking it down
1. Question – is the question before the Court as (1)(a), or is the question about the validity or interpretation of the Treaty OR interpretation of any other Act of the Union (1)(b). Assuming this is the case we need to know if the court is a 267 court – so we need to determine whether the court constitutes a court
a. Put together Dorschech consult case + : Broekmeulen (looks at national court/ not about the national designation BUT ABOUT THE CRITERIA) .
i. Whether the body is established by law
ii. Whether the body is permanent
iii. Whether its jurisdiction is compulsory (matter must be heard by the court)
iv. Whether its procedure is ‘inter partes’ – (heard between 2 parties)
v. Whether it applies rules of law
vi. And whether it is independent.
2. Having established that we have an Article 267 court, does it have a discretion to refer, OR an obligation – to deal easily, then start saying if it is (3) or (2)
a. So to see if (3) applies, then when you get to the last court of instance, then you will have an obligation to refer. One way to look at is the legal order
i. Costa v Enel – A Magistrates court – the amount of money, that was involved was so small that there was no further procedure to refer – magistrates court was then made last court of instance – so when looking at (3) is THE LEGAL ORDER, can that decision order be appealed or not.
b. Assuming that it is NOT a last court of instance, then it will have the discretion to refer.
EXCEPTIONS
3. If it is a (2) not important exceptions, but (3) has very important exceptions:
a. General
b. Act éclair –
c. Act clair
There are 4 types of general exceptions –
1. The dispute is not genuine or the procedures are not complied - Foglia
2. If the question is irrelevant
3. If the question is hypothetical
4. If the question is not articulated properly.
a. Note
i. For general exceptions, there is a judicial dialogue. The Court is prepared to strike out a question in a P Ruling if it does not think it is appropriate.
Act éclair exceptions – case Da Costa
- Da Costa – a point of law of which has already been decided, similar but not identical.
- Another one – if the question is materially identical to what has already been raised.
Act Clair – CILFIT
• CILFIT – confirmed Da Costa and Act éclair.
The following is the first issue at hand raised in CILFIT.
1. The correct application of the law must be so obvious to leave no scope for reasonable doubt as for its resolution. Has to be so obvious to:
a. National courts
b. Has to be obvious to the courts of other MSs
c. Has to be obvious to the CJEU.
2. The second point, is trying to translate so many complex languages into others.
3. We also have EU legal concepts and terminology which are unique to the Union as a legal order and the difficulty in translating that is not always clear.
4. Looking at the interpretation of law is not always looking at the Treaty itself BUT also the context in which it is being brought into.
Notes on CILFIT
• Some view that it is high threshold – so the power was given back to the national courts to refer whether the issue/ question was so obvious.
STATE LIABILITY
The last point to consider is the state liability issue, case – Bergaderm – confirmed:
• When talking about Union liability, and the principles seen in Factortame equally apply to the principle of JR and Preliminary rulings – Case confirms Factortame, the principles apply to this topic as well.
o Remember, to meet state liability, must meet the three test:
♣ 1. The rule of law infringed must be intended to confer rights,
♣ 2. The breach must be sufficiently serious,
♣ 3. There must be a causal between the breach of the obligation and the damage sustained or suffered by your client.
♣ - Cumulative test so all three must be met.
• In Bergaderm – confirmed that it is for the client to prove the three principles, so burden of prove falls on him – and the court also talked about other factors that will inform a decision on a test:
o 1. The relative clarity of the rule reached – might be important when looking at the CILFIT case
o 2. The level of authority is given to the court – degree of discretion
o 3. Whether the error of law was excusable or not
o 4. Whether the breach of the law was intentional or voluntary.
♣ These test underpins the test in Factortame of state liability.
This is a new framework
NOW, ESTABLISHING JR – four legal points to establish a judicial review:
1. Is the time limit satisfied?
2. If we are in time, is the act of the Union reviewable? – acts in this contexts means actions, not Acts.
3. Does the client have standing; do they have standi?
4. Do we have grounds for review?
Breaking them down:
- Time limit
a. Two months, on the date of application of the applicant, and the case law has expanded that for when this was brought to the applicant’s knowledge
i. Case – TWD – confirms 2 months’ time limit.
ii. Says that if we are within the 2 months and you do an assessment and the client has standing under judicial review, and your client then decides not to follow a JR case, the client will then be barred from raising a preliminary reference to the Court. - Whether the act is reviewable or not:
a. Two basic question based on the test of the treaty:
i. Whether the institution has been listed in one of the paragraphs 1 of 263? If so;
ii. Is the act legally binding upon the parties – case – IDF v Commission. Case confirmed that when looking at something is legally binding, we are looking the substance and intention of the act, or is the intention of the act legally binding. This covers both legislative and non-legislative acts - Legislative – has an act of the Union gone through the special process
- Legislation also may not have gone through the normal voting procedure but if it is binding it may go through the JR – so we know that recommendations and opinions are not reviewable because these are not legally binding.
a. A letter from the European Commission, is binding, could be if it has an effect. - Standing, there are three categories
a. Privileged
i. Includes the MS and the EU Parliament, Commission and Council.
b. Semi-priviledge
i. The Court of Auditors, and the Central Bank,
c. Non-privileged
i. If the applicant does not fall in the two categories above, then the applicant must demonstrate standing. - With a non-privileged applicant ask:
a. Is the act specifically to them? (direct addressee) If so then they will have standing.
b. If they are not a direct addressee of the act we have two tests 263(4)
i. Lisbon test – introduced following the lisbons legislation.
ii. General test of standing.
Lisbon test:
• Do you have a regulatory act which does not require regulatory measures? So if the applicant does not have direct concern. The test:
o 1. Reg Act INUIT 1 – ‘A regulatory act is of general application apart from legislative acts’ (all non-regulatory acts)– so up to this point the court has looked at it as non-regulatory.
♣ Case – Microban – concerned a Commission decision which was not legislative and constituted a regulatory act for the purposes of the Lisbon test.
♣ Note – whether something is regulatory or not/ does the treaty require a regulatory act or not by looking at the treaty/ you could be looking at 2 directives (so remember the points of regulatory and non-regulatory above, voting, going through legislative procedure)
o 2. Must require no further implementing measures – case Telefonica.
♣ The Court – the absence of ANY FORM of implementation in order for the Lisbon test to be satisfied in the test.
o 3. Need to prove the test of direct concern, case – Les Verts:
♣ Court - Direct cause or relationship between the act of the union and the effect of the client.
♣ The issue at hand is discretion –
♣ If there is discretion about the interpretation of the law, that potentially breaks the chain of causation/ and if it is about how the chain of causation can be broken. Again high thresholds.
♣ Said when you look at the rules, they did not require discretion, and that made the causal links between the acts and the test.
General test of standing:
• Applies only to acts that has gone through some form of voting procedure – look out for this is the PQ.
• If it is left opened to you and talks about a formal piece of legislation, like Directives, or Regulation, invites you to talk about about both, because they can be non-legislative.
1. Legislative Acts – about the direct cause of connection between the act of the Union and the effect.
2. Direct concern
3. Client must also prove that they are individually concerned by a legislative act, case:
a. Plaumann – proving that your client belongs to a close category of applicants.
b. P formulated the test as 4 pieces:
i. Does your client have certain attributes particular to them?
ii. Or circumstances which differentiate them from all other persons generally and also other individual applicants where relevant?
c. What Plaumann confirmed, that simply undertaking an economic activity does not bring you under a special group of people. The Court reasoned that the import of fruit could be undertaken by anyone wishing to do so.
d. Revision, see where the Plaumann TEST has been met: for example:
i. Toepper – clients belonged to a close category because they had licences.
ii. Piraiki – About a unique or distinctive commercial contract/ here client was entering into a commercial agreement, which was being affected by the Union Act. So nature of the contract was being affected by the Union Act.
iii. Cordoniy – the person was affected to use trademark due to Union Treaty.
4. Assuming that the client has standing – test:
a. Do they lack competence?
b. Whether the institution has infringed a rule or procedure?
c. Whether a Treaty or rule of law has been infringed?
d. Whether the institution has misused its powers.
i. You are expected to talk about, revieability, standing…for JR
5. Union liability attaches through B.
Notes 2
Central issues
• The CJEU currently hears all Art 267 TFEU cases.
• The relationship between national courts and the CJEU is reference-based. It is not an appeal system. No individual has a right of appeal to the CJEU. It is for the national court to make the decision to refer.
o The CJEU will rule on the issues referred to it, and the case will then be sent back to the national courts, which will then apply the Union law to the case at hand.
• Art 267 is also an indirect way of testing the validity of EU action for conformity with Union law. An individual can contest the legality of EU law directly before General Court under Art 263 TFEU. However, the rules concerning access to the Court under Art 263 are restrictive and therefore raising the validity of EU law before a national court under Art 267 TFEU may be the only way to challenge such a measure.
• The original relationship between the two courts was horizontal and bilateral.
o Horizontal because the ECJ and the national courts were separate but equal. National courts could decide whether to refer a matter to the ECJ, which the ECJ could then interpret.
o Bilateral in the sense that, in a sense the ECJ’s rulings were delivered to the particular national court that made the request. In this sense there was a series of bilateral relationships between the ECJ and each of the national courts.
• The relationship has become steadily more vertical and multilateral.
o More vertical in the sense that developments emphasize that the ECJ now sits in a superior position to that of the national courts.
o The vertical relationship, in the sense that it manifests itself in a less obvious but equally important manner.
o The relationship has become more multilateral in that judgments give in response to the request for a ruling from one MS are increasingly held to have a ‘facto’ or ‘de jure’ impact on all other national courts.
- Foundations of Art 267
A. Questions that can be referred to the Court:
a. Art 267(1)(a) The CJEU does not give judgment on the validity of national law. It interprets the Treaty.
b. Art 267(1)(b) – This part of the Article covers cases such as ICC and Foto-Frost. Where the validity of EU regulation, directive or decision is contested before a national court OR when individuals argue that EU gives them rights in national courts OR references may be made in relation to non-binding acts such as recommendations, and certain agreements with non-MS. OR where a provision of national law makes some reference to EU law, even if the consequence is that the ambit of EU law is extended by the national provisions.
B. The courts or Tribunals which can refer
a. The CJEU must establish whether a body is a court or tribunal to make such a reference. Hence, a number of factors must be taken into account.
i. Whether the body is established by law
ii. Whether the body is permanent
iii. Whether its jurisdiction is compulsory
iv. Whether its procedure is ‘inter partes’
v. Whether it applies rules of law
vi. And whether it is independent.
b. The application is has not always been clear: Broekmeulen.
• The relationship between national courts
o In Cartesio the ECJ supported the ability of lower courts to refer to the ECJ. Even in the face of negative decision by a higher national court.
- The existence of a question: development of precedent
• It is for the national court to decide whether to make a reference.
A. National law in breach of EU law and prior ECJEU rulings
a. Art 267(1) is designed to be used only if there is a question to be answered. But a question posed by a national court many not need a ruling if the CJEU has already ruled on the matter.
i. Da Costa – The national court is still able, in formal terms to refer a matter to the Court, even where it has ruled on the issue. However, it is still clear that such an application must raise some new factor or argument. But the existence of an earlier ruling can deprive the national court’s obligation to refer ‘of its purpose and thus empty it of its substance’.
ii. CILFIT.
Conclusion
• The development of precedent has affected the relationship between national courts and CJEU. It modifies the original conception of a horizontal and bilateral relationship. Insofar as CJEU rulings have de facto precedential value, they place the Court in a superior position to the national courts. The very existence of a system of precedent is indicative of a shift to a vertical hierarchy between the CJEU and national courts: The CJEU will lay down the legally authoritative interpretation which will then be applied by the courts.
Conclusion
• The relationship between national courts and the CJEU has been transformed by the development of precedent, acter clair, and sectoral delegation of responsibility.
• These developments have made national courts EU courts in their own right. They can dispose of cases without the need for a further reference to the CJEU. They can do so where there is an EU decision on the point, where the matter is so clear as to obviate the need for a reference, or where more general responsibility has been delegated to them in a particular area.
- Decision to refer
• In addition to the above + the fact that a national court must consider a decision worthy of referral two further criteria have to be made:
o 1. The question must be raised before the court or tribunal of the MS. However, it has been seen that the CILFIT case held that a national court may raise a matter of its own motion, even if this has not been done by the parties.
o 2. The national court must consider that a decision on the question is necessary to enable it to give judgment. CILFIT makes it clear that even a national court of last resort must believe that this is so before it is obliged to make a reference. It should also be noted that Article 267 does not provide that the reference must be necessary, but that a decision on the question is necessary to enable the national court to give judgment. The danger of confusing these two issues was brought out in the Bulmer case, which shows the ‘early approach’ of the UK courts to the exercise of the discretion accorded to them.
♣ CA Lord Denning decided that a reference was not necessary for a number of reasons. The judgment was uncontroversial and the guidelines were criticized. Thus, Jacobs argued that there were many situations where time and costs would be saved by an early reference and that cases raising important points of EU law could arise where there was little at stake between the parties. - The decision to accept the reference: The CJEU’s perspective.
A. The liberal initial approach
a. The ECJ’s initial approach was liberal and it would, wherever possible read the reference so as to preserve its ability to pass judgment on the case.
b. The ECJ was prepared to ‘correct improperly framed references’. Thus, in Costa it stated that it had the power to extract from a question imperfectly formulated by the national court those question which really did pertain to the interpretation of the Treaty.
B. Cases where the CJEU has declined jurisdiction
a. Hypothetical cases
b. The questions raised not relevant to resolution of the dispute
c. Questions not articulated sufficiently clear
d. Facts are insufficiently clear
C. Recommendations to national courts on preliminary references
a. It should include a statement setting out the subject matter of the dispute and the essential facts; the relevant national law, identify as accurately as possible the EU provisions relevant to the case; the reason why the national court referred the matter and the relationship between the provisions of EU law and national provisions applicable to the action, and a summary of the parties’ arguments where appropriate.
- The decision on the reference: interpretation vs application
• Art 267 gives the CJEU power to interpret the Treaty, but does not empower it to apply the Treaty to the facts of a particular case. The distinction between interpretation and application is said to characterize the division of authority between the CJEU and national courts: the former interprets the Treaty, the latter apply that interpretation to the facts of a particular case.
Chap 14
Central issues
• There are number of ways in which EU law can be challenged, but the principal Treaty provision is Article 263 TFEU.
• Five conditions must be satisfied before an act can be successfully challenged.
o 1. The relevant body must be amenable to judicial review
o 2. The act has to be of a kind which is open to challenge
o 3. The institution or person making the challenge must have standing to do so
o 4. There must be illegality of a type mentioned in Art 263(2)
o 5. The challenge must be brought within the time limit indicated in Article 263(6)/
• It is also possible to challenge the validity of EU action indirectly, via Article 267 TFEU. The interrelationship between direct challenge under Art 263 and indirect challenge is important. The EU Courts defended their narrow interpretation of standing for direct actions by arguing that the Treaty provided a complete system of legal protection through a combination of Article 263 and 267. There are however, difficulties with this hypothesis.
Article 263 is on judicial review.
Article 263(1): Bodies subject to review
• Article 263 TFEU deals with a direct challenge to the legality of EU acts. Article 263(1) defines the bodies that are amenable to review.
• The ECJ has provided that the list is not exhaustive and that other acts which are sui generis can also be reviewed, provided that they have binding force or produce legal effects. Commission v Council
Articles 263(2) -(3)
• Article 263(2) states that the action may be brought by a MS, the Council, the EU Parliament, or the Commission. It appears from this that these applicants are always allowed to bring an action, even where the decision is addressed to some other person or body. EU law does not oblige a MS to bring an action under Articles 263 or 265 TFEU for the benefit of one of its citizens, although EU law does not preclude national law from having such an obligation.
• Most agencies have legal personality and could therefore count as legal persons for the purposes of Article 263(4) TFEU. They would however, then have to satisfy the criteria in Article 263(4), including the test for standing.
Article 263(4): standing for non-privileged applicants
• The Article allows a non-privileged person to bring an action in three types of cases:
o 1. The addressee of a decision can challenge it before the CJEU or General Court GC.
o 2. Where the act is of direct and individual concern to the natural or legal person or persons, the assumption being the person or persons are not immediate addressees of the act.
o 3. Where there is regulatory act, which does not entail implementing measures, so the claimant must show direct concern but does not need to prove individual concern.
A. Direct concern
a. The implementation must be automatic and result from EU rules without the application of other intermediate rules.
i. International Fruit Company v Commission.
1. Here the Community adopted a Regulation which limited the import of apples from third countries. The regulation provided a system of import licences, which were granted to the extent to which the Community market allowed. Under this system, a MA notified the Commission, at the end of each week, of the quantities for which import licences in the light of this information.
2. The Commission then decided on the issue of licences in the light of this information.
3. The challenge was to a regulation applying to this scheme to a particular week. The ECJ found individual concern and then considered whether the applicant was directly concerned.
B. Individual concern: Plauman
CILFIT v Ministry of Health, 283/81 ECLI:EU:C:1982:3351982] ECR 3415
• Facts
o The plaintiffs alleged that certain duties imposed by Italian law were in breach of EU law.
o The Italian Ministry of Health urged the Italian Court against whose decisions there was no judicial remedy under national law to refer the matter to the ECJ, because the answer to the question was so obvious as to remove the need for a reference.
o The Italian court decided that this contention was itself an issue of community law. It therefore requested a ruling from the ECJ on whether the obligation to refer was unconditional, or whether it was premised on the existence of reasonable interpretive doubt about the answer which should be given to a question.
• The ECJ’s response.
o ‘the mere fact that a party contends that a dispute gives rise to a question concerning the interpretation of community law does not mean that the court or tribunal concerned is compelled to consider that a question has been raised within the meaning of Article [267]. On the other hand, a court or tribunal may, in appropriate cases, refer a matter to the Court of Justice of its own motion…
o Accordingly, the courts or tribunals are not obliged to refer to the Court of Justice a question concerning the interpretation of Community law raised before them if that question is not relevant, that is to say, if the answer to that question…can in no way affect the outcome of the case…
o If, however, those courts or tribunals consider that recourse to Community law is necessary to decide a case, Article [267] imposes an obligation on them to refer to the Court of Justice any question of interpretation which may arise.’
• The conditions in which the national courts may not make a reference were made clear in here.
• Commentary on the case:
o Mancini and Keeling;
♣ Saw CILFIT as a Dialogue between the ECJ and the national courts, with the intent being to rein the latter. The ‘give and take’ of CILFIT involved the ECJ accepting the acte clair doctrine in principle, but placing significant constraints on its exercise in the hope that national court would play the game and only refuse to refer when matters really were unequivocally clear.
Costa v ENEL , 6/64
• Established supremacy of EU law.
• Facts
o Mr Costa, an Italian citizen who had owned shares in an electricity company and opposed the nationalisation of the electricity sector in Italy. He refused to pay his electricity bill in protest and was sued for non-payment by the newly created state electricity company, ENEL.
o In his defence he argued that the nationalisation of the electricity industry violated the Treaty of Rome and the Italian Constitution. The case was referred to the Court of Justice.
o The Italian Constitution Court gave judgment, ruling that while the Italian Constitution allowed for the limitation of sovereignty for international organisation like the European Economic Community, it did not upset that normal rule of statutory interpretation that where two statutes conflict the subsequent one prevails.
o As a result, the Treaty of Rome which was incorporated into Italian law in 1958 could not prevail over the electricity nationalisation law which was enacted in 1962.
o In light of the decision of the constitutional court, the Italian government submitted to the ECJ that the Italian court’s request for a preliminary ruling from ECJ was inadmissible on the grounds that as the Italian court was not empowered to set aside the national law in question, a preliminary ruling would not serve any valid purpose.
• Judgment
o The ECJ held the Treaty of Rome rule on an undistorted market was one on which the Commission alone could challenge the Italian government.
o As an individual Costa had no standing to challenge the decision because that Treaty provision had no direct effect. However, Costa could raise a point of EC law against a national government in legal proceeding before the courts in that MS: EC law would not be effective if Costa could not challenge national law on the basis of its alleged incompatibility with EC law.
• Significance
o This case in additional confirmation that under Article 267 of the TFEU, a court has an obligation to refer cases that have reached the highest point of appeal in their respective country, if there is a question of the application of EU law. Costa had reached its highest point of appeal.
Dorsch Consult , C-54/96 ECLI:EU:C:1997:413
• Summary
o In order to determine whether a body making a reference to the Court of Justice is a court or tribunal for the purposes of Article 267, is a question governed by Community law alone, a number of factors must be taken into account:
♣ Whether the body is established by law,
♣ Whether it is permanent,
♣ Whether its jurisdiction is compulsory,
♣ Whether its procedures is inter partes (between the parties)
♣ Whether it applies rules of law,
Whether it is independent.
Lyckeskog, C-99/00, ECLI:EU:C:2002:329
• Summary
o Where its decisions may be appealed to a supreme court, a national court or tribunal is not under the obligation referred to in the third paragraph of Article 234 EC to refer a question to the Court of Justice for a preliminary ruling even if examination of the merits by the supreme court is subject to a prior declaration of admissibility.
Gaston Schul Douane-expediteur , C-461/03 ECLI:EU:C:2005:742 and Opinion A-G,
• Summary – case
o Gaston declared the import of 20 000 kg of raw cane sugar from Brazil. According to the information sent by the customs authorities with the comment ‘check concluded without adjustments’, an amount on the import duty was due. The tax department later sought payment in respect of ‘agricultural levy’ which was much higher than the amount Gaston owed. Gaston brought an action before the national court.
• On the first question to the Court
o The third paragraph of Article 234 EC requires a court or tribunal of a MS against whose decisions there is no judicial remedy under national law to seek a ruling from the Court of Justice on a question relating to the validity of the provisions of a regulation even where the Court has already declared invalid analogous provisions of another comparable regulation.
♣ It is clear from the case of CILFIT that a court or tribunal against whose decisions there is no judicial remedy under national law is required to bring the matter to the Court of Justice, UNLESS it has established that the questions raised is irrelevant or that the Community provision in question has already been interpreted by the Court or that the correct application of Community law is so obvious as to leave no scope for any reasonable doubt.
• Summary of the Opinion A-G.
o Following the case of Foto-Frost, all courts of the MS are required to seek a preliminary ruling from the Court of Justice prior to declaring a Community act invalid. The uncertainty which has arisen in the present case concerns whether that obligation, which is a product of case-law and not laid down in the Treaties, is absolute in nature or whether it may be subject to any exceptions.
o Proposes the following:
♣ ‘1. A court or tribunal within the meaning of the third paragraphs of Article 234 EC is not required under the provision to refer for a preliminary ruling a question concerning the validity of an act of the institutions, and may refrain from applying such an act, where the Court of Justice has already ruled a comparable act invalid and the act concerned is vitiated by the same ground of invalidity.
• MY COMMENT – contrast how A-G does not want to refer unless the point of law is new. Currently, the law does allow for a preliminary ruling to be obtained even if the point of law is the same. That way new issues may rise. CILFIT + this case.
Kühne and Heitz , C-453/00, ECLI:EU:C:2004:17
• Summary
o Reference made to the Court for a preliminary ruling under Article 234 EC a question on the interpretation of Community law, and in particular the principle of cooperation arising from Article 10 EC (MS shall take appropriate measures to ensure the fulfilment of the obligations arising under the Treaty)
• Questions referred for a preliminary ruling
o From the questions, it was concluded: that the principle of cooperation arising from Article 10 EC imposes on an administrative body an obligation to review a final administrative decision, where an application for such review is made to it, in order to take account of the interpretation of the relevant provision given in the meantime by the Court where:
♣ under national law, it has the power to reopen that decision;
♣ the administrative decision in question has become final as a result of a judgment of a national court ruling at final instance;
♣ that judgment is, in the light of a decision given by the Court subsequent to it, based on a misinterpretation of Community law which was adopted without a question being referred to the Court for a preliminary ruling under the third paragraph of Art 234 EC
the person concerned complained to the administrative body immediately after becoming aware of that decision of the Court
