Public Enforcement: Art 267

Question 1

For Preliminary References under Art267 TFEU, what are the 3 key questions?

Answer 1

1. What does it concern?
   • Treaty interpretation
   • Validity and interpretation of acts of EU bodies
2. Should the issue be referred?
   • ICC: Issue has been raised before
   • Cartesio: Issue is judicial
3. Is a court/tribunal referring?
   • Kaefer and Procacci: ONLY MS’ court/tribunal can refer

Question 2

For Preliminary References, explain the 2 types of concerns.

Answer 2

1. Art267(1)(a): Interpretation of the Treaty
2. Art267(1)(b): Validity and interpretation of acts of EU bodies
   • IN CO GE ‘90: ECJ not directly making any judgment on validity of domestic laws

Question 3

Previous ECJ decisions can be referred to if issue is the same

Answer 3

ICC: Skimmed milk

Question 4

Only ECJ can determine validity of acts of EU bodies

Answer 4

Firma Foto-Frost

Question 5

For Preliminary References of issues with Validity/Interpretation, what acts can be referred?

Answer 5

1. Regardless of whether act is directly effective
2. Act can be non-binding
   • Recommendations: Salvatore Grimaldi
   • Agreements with non-MS: Parfums Christian Dior
3. Where provision of nat’l law is based on or makes ref to EU law
   •Dzodzi v Belgium

Question 6

For Preliminary References,

can a court/tribunal be defined by domestic law?

Answer 6

1. For the ECJ to decide whether a body is a court/tribunal; nat’l law categorisation not conclusive
   • Politi v Italy
2. Is the body’s decision subject to appeal in the case in question?
   • Costa
   • Affirmed in Lyckeskog

Question 7

Magistrate’s decision could usually have been appealed, but case involved a sum too small to appeal

Answer 7

Costa

Question 8

Decision of nat’l appeal court could be challenged before supreme court, so did not count

Answer 8

Lyckeskog

Question 9

For Preliminary References, what are the criteria to determine a court/tribunal?

Answer 9

Salzmann:
1. Body established by law?

2. Permanent?
3. Compulsory jurisdiction?
4. Procedure inter partes (between parties, and serves notice on all involved parties)?
5. Applies rule of law?
6. Independent?

Question 10

For Preliminary References, when can an issue be referred?

Answer 10

1. When issue has NOT been ruled on
   • ICC
   • Da Costa en Schaake NV and others
2. If issue involves a judicial decision (NOT administrative)
   • Cartesio

Question 11

Material facts similar to Van Gend, question posed to ECJ the same = Referred to Van Gend judgment

Answer 11

Da Costa en Schaake NV

Question 12

Appeals Committee counted as court/tribunal: Operates with consent+cooperation of public authorities; after adversarial procedure, delivers decisions recognised as final

Answer 12

Broekmeulen

Question 13

Courts of last instance usually more likely to be expected to Prelim Refer

Answer 13

Ferreira da Silva (interpretation of Directive in question differed across courts)

Question 14

Acte clair doctrine: Courts of last appeal must refer issues to ECJ, unless issue in question is ‘so obvious as to leave no scope for any reasonable doubt’

Answer 14

CILFIT

Question 15

If court of last appeal refuses to refer a question and gives no reason for refusal, can be liable to pay claimant pecuniary and non-pecuniary damages

Answer 15

Dhabi v Italy [2014]

Violation of Arts 6 and 41, fair trial and just satisfaction

Question 16

If validity of EU act in question, interim relief can be granted if:

Answer 16

C-465/93 Atlanta

1. Referring court has serious doubts about validity
2. Contested act is not already before CJEU
3. Relief needed to prevent claimant from suffering serious and irreparable damage
4. Referring court has gathered all info on the act wrt EU interest

Question 17

After Prelim Ref:

1. MS expected to rectify law (as per Art 10 TEU)
2. If there is discrimination, discriminative rule to be set aside immediately

Answer 17

National Pensions Office v Jonkman