Standing and Preliminary Referneces

Question 1

Article 267 TFEU

Answer 1

The interpretation of the treaty and the validity and interpretation of any secondary measure.

• some courts may ask for a ruling
• some courts shall ask for a ruling

Question 2

Art 267: some courts may ask the CJ to give a ruling

Answer 2

Discretionary Courts

- any domestic court or tribunal may refer

Question 3

Art 267: some national courts shall ask the CJ to give a ruling

Answer 3

Mandatory Courts

- Only domestic courts of last instance, does not have to be the supreme court of the state.

Question 4

The CJEU is there to tell Member States

Answer 4

how to apply EU law, not to resolve disputes.

Question 5

Both EU and domestic legislation and laws may be referred

Answer 5

Drozi v Belguim

Question 6

Provisions and concepts taken from community law are to be interpreted uniformly

Answer 6

Leur-Bloem

Question 7

Questions that may not be referred under Art 275 and 267

Answer 7

Questions about common foreign and security policy

Question 8

Which courts or tribunals may ask questions to the CJ

Answer 8

Dorsch Consult dictates that it is only the CJ that may decide which courts or tribunals may ask questions, not domestic courts.
- the CJ only cares about what the body does, i.e. does it deal with law, if so then it may ask questions.

Question 9

CJ allowed the GP registration commission to ask questions

Answer 9

Broekmeulen

Question 10

The court has jurisdiction to reply to a request from a preliminary ruling by a judge in a member state

Answer 10

Pretore di Salo

Question 11

The court refused to give a reference about an architectural contract as the body referring it was set up by private contract and not domestic law

Answer 11

Nordsee

Question 12

The court did not accept the reference from the greek competition authority as the body was not sufficiently separate from the state.

Answer 12

SYFIAT

Question 13

The scope and discretion of domestic courts in referring questions to the CJEU under Art 267

Answer 13

Has changed over time

Question 14

The widest discretion for references.

Domestic law may not prevent the court from referring regulation merely because a higher court has given precedent.

Answer 14

Rheinmuhlen

Question 15

References must be made with considerations of ‘procedural organisation’ and ‘efficiency’ in mind

Answer 15

Irish Milk supplier Association

Question 16

A national court exercising it’s Art 267 discretion, is bound by the interpretation of the CJ and must, if necessary, disregard the interpretation of EU law of a higher domestic court

Answer 16

Elchinov

Question 17

The CJ will not answer questions which are deemed ‘not genuine’

Answer 17

Foglia

Question 18

While it is for domestic courts to have discretion in referring questions it is for the CJ to examine the grounds on which to accept or reject the claim.

Answer 18

Foglia (No. 2)

Question 19

The need for a preliminary rule is at the discretion of the domestic court.

Answer 19

Philip Morris

- where questions submitted concern the interpretation and validity of Eu law, the court is bound to give a ruling .

Question 20

The court may refuse to give a ruling

Answer 20

• where the question bears no relation to the facts of the main action
• where the question is hypothetical (Meilicke)
• where the court does not have the factual or legal material necessary (Telemarsicabruzzo)

Question 21

Domestic courts who have to refer to the CJEU

Answer 21

Domestic courts of last instance (Lyckeskog)

Question 22

The circumstances where a court cannot refer

Answer 22

Hoffman La-Roche: two exceptions

1. Principle of Precedent
2. Principle of Act Clair

Question 23

The Principle of Precedent

- a measure that has already been clarified

Answer 23

Does not need to be identical (CLIFIT)

Question 24

Principle of Act Clair

- where the answer is clear

Answer 24

Three questions need to be asked

• Language: is it the same in every language
• Terminology: does the legal terminology mean the same in every language
• Context: to have read the articles with their intent

Question 25

If there are different interpretations in one country the court must refer a case

Answer 25

Da Silva

Question 26

A domestic court does not have to wait for an answer from the CJ on a similar issue to refer a question

Answer 26

van Dijk

Question 27

The decision as to whether a question is Act Clair is better decided by the CJ than a national court

Answer 27

Lord Bingham in Samex

Question 28

There is a CJ duty to comply with EU law objectives. A national law that is in contrast with EU law must be cast aside without being referred to the CJ

Answer 28

Jonkman

Question 29

If a domestic judge does not know whether a union measure is legal or not

Answer 29

The judge may:

• Declare the law valid
• Refer to the CJ
• They CANNOT declare an EU law invalid

Question 30

Domestic courts do not have the power to declare an EU law invalid

Answer 30

Foto-Frost

- but can temporarily suspend an action (Atlanta)

Question 31

When the system of preliminary references does not work

Answer 31

• The commission can take the nation to court under Art 258 (Commission v France)
• An individual can seek damages through state liability/

Question 32

The court must always reply to the referring court’s request for a preliminary ruling.

Answer 32

Gauwiler