Seen Question Flashcards
Intro: what does article 267 do?
It outlines the preliminary ruling procedure, a form of indirect action by which the CJEU resolves issues of EU law, put to them by the national courts. The member state,faced with a question of EU law, the determination of which is essential for the resolution of the dispute before them, makes a ‘reference’ to the CJEU for its view on the provision. The procedure has been the platform for several landmark decisions, and has been the instrument which allowed the Court to develop crucial legal doctrines.
Intro: What is the EU legal order?
The EU legal order refers to the independent, autonomous nature of EU law. It was established by the Treaty of Rome and set out in seminal cases van gend en loos and costa v enel. The latter was brought under an article 267(3) reference, and ruled that EU law ‘has its own personality, it’s own legal capacity…and the MS….have thus created a body of law which binds both their nationals and themselves’. EU law is supreme, and must be adhered to by all states, even if it conflicts with their own legislation.
Intro: What will this essay consider?
The impact the preliminary ruling procedure has had on this European legal order, considering the doctrines established and the effects generated on this hierarchy by article 267.
Supremacy: what is it and how has it been developed?
One of article 267’s primary contributions to the EU legal order, was through the development of the principle of supremacy. This critical principle was first, rather cautiously states in Van Gend and then clarified and developed in costa, a preliminary rulings case, which stated that MS could no longer create law that went against the legal order of the community. The doctrine remains one of the central pillars for ensuring a uniform interpretation and application of EU law. After all there are now 27 diverse member states, with their own laws and traditions.
Intro: What does Trstenjak note?
‘In order for such a legal order to function certain communal, universal principles need to be established’.
Supremacy: The impact of the principle of supremacy is clearly enormous, with the EU legal order built around the notion that MS have limited their rights in favour of the international laws. But how does analysis demonstrate that this has not always been a smooth process?
States can be unwilling to surrender sovereignty and accept the primacy of EU law, and as the decision to make a 267 reference rests with the national courts, there are doubts as to how often the procedure is used. Is it simply dependent upon the goodwill of the member states? There is no real enforcing mechanism to compel states to refer, and as such questions are raised as to the accessibility of union law to individuals. However, this has been enhanced by the development of the principle of indirect effect - individuals may raise a point of union law in front of a national court - and the nature of article 267 is that it is a consensual process, which is by and large utilised by the majority of MS.
Generation of EU discourse: what is one of the further contributions of article 267?
Its active encouragement of cooperation and communication between the courts of the member states and the CJEU. The procedure is - in short - a reference from one judge to another and - aside from where courts must make a referral under article 267(3) - a decision to refer is made by the national judge.
Generation of EU discourse: what do mare and Connelly comment?
‘It is the primary interface between national and EU thinking, preliminary rulings provide perspective on shifting national or EU legal reasoning’.
Generation of EU discourse: what has this done to the scope of the EU legal order?
It has expanded it. And comprises the majority of the work of the CJEU with PRs making up 450 of the 699 cases in 2013. The system ensures there is an ongoing dialogue between the national and European legal communities. The CJEU has stressed that it is not an appeals system, but a horizontal procedure, whilst EU law is supreme, the relationship between the courts is one of equals.
Generation of EU discourse: how has this been distorted in recent years?
There have been questions raised as to the effectiveness of the procedure, and the communication between the courts, with fears that the CJEU has been overloaded. The court has taken a broad expansive approach to references meaning the docket of cases is vast, with delays frequent. There are also concerns raised as to the nature of the references, with the CJEU being viewed as a ‘watchdog’ over the member states, a senior rather than an equal court. The ever increasing jurisprudence of the CJEU, particularly post-Lisbon, implies the national courts are not trusted to implement EU law, and has adversely affected European relations. This has been demonstrated in the recent case of Kobler, with concern that such decisions foster tension and hostility between the courts.
Harmonisation: what is the final contribution of the preliminary ruling procedure has made to the EU legal order?
that of a unification of EU law.
Harmonisation: what case said that ‘ensuring that in all circumstances the law is the same in all states’
Rheinmuhlen
Harmonisation: which case said that - although the reference comes from an individual court, all other national courts can rely on, and are bound by, the judgement.
International chemical corporation
Harmonisation: who said - by virtue of the procedure the EU legal order has become more harmonised and the national courts operate under similar principles, achieving the uniform interpretation of EU law.
Tridimas.
Harmonisation: article 267 also contributes to the development of crucial EU legal norms, both key constitutional principles - such as supremacy - and more specific detailed provisions - for example….?
The regulation of working time
