The Preliminary Reference Procedure Flashcards
Article 267: National Court References: In order for EU to function successfully national court and court of justice need to work together and understand their jurisdiction and what they can and cannot do. Focus on why the rules apply this way. Article 267 TFEU -there is no judicial remedy under national law, that court or tribunal must bring matter before court.
Purpose of article 267- this article is a collaboration process. Its triggered by courts during the course of litigation. Court of justice EU judgment in this matter is known as preliminary ruling. What is the purpose of the ruling provided is to assist national court to reach a final conclusion. Article 267 procedure used to allow other member states to interpret law way intended by EU once ruling is given should be applied to all relevant cases after. National courts decide questions of fact and apply national and eu law, court of justice interprets what was meant by a particular phrase it can also answer questions on the validity.
National courts take primary responsibility however the union seasoning is applied by the EU. Article 67 allows for a referral and not an appeal procedure. Referrals are important to ensure for uniformity and harmonisation. CJEU can interpret eu law and consider how it will affect individual. Needs to be consistent application of eu law in all states and that EU law cannot have different meanings in different states.
Importance of the jurisdiction of the CJEU. CJEU- has a particular responsibility to ensure it does not overstep its jurisdiction, rulings are binding on national courts of member states, CJEU jurisdiction only extends to matters of EU law, CJEU can instruct national courts to disregard conflicting national laws. CJEU cannot rule on national laws outside its competence. Referral of questions by national courts; interpretation of EU treaties, acts of the institutions etc, international agreements. Validity of Acts of the Institution Acts. Key thing to note here the dispute itself must occur naturally. The procedure cannot be used to interpret national law has to be EU law. The CJEU itself must answer questions that are act but does have power to select questions which are relevant. No jurisdiction over formulating questions and CJEU has power to class questions as inadmissible. Formulating questions: no general or hypothetical questions case 244/80 Foglia v Novello No 2, CJEU may not decide on compatibility of national law, national court proceedings must still be active.
Court or tribunal- Roles of CJEU AND NATIONAL COURT. CJEU: Interprets law. National law applies the law. This is a co-operative procedure. CJEU may not overstep its Jurisdiction. In case of Arsenal v reed: issue concerning word Arsenal appearing on sports merchandise the question meant whether these goods were endorsed by arsenal club. Arsenal accused Reed of unofficial merchandise, Justice requested ruling of the interpretation and justice took part of the ruling and created own conclusion in favour of reed.
Court of appeal held that the CJEU should not apply the law it should only interpret it and not comment on any application. On appeal this conclusion was corrected. Even though Justice’s approach was sensible in this case. Which courts may refer: number of factors= is the body established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes or whether it applies rules of law and whether it is independent. Which courts may refer? Any court or tribunal of a member state. Exclusions = domestic tribunals Re Jules Borker and arbitrators.
Discretion or obligation to refer: Article 267 (2) court or tribunal may request the Court of justice to give a ruling. Discretionary referral: Article 267 TFEU and Lower Courts, ‘may’. Discretion of the National Court, Case 13/68 Salgoil v Italian Ministry of Foreign Trade.
Mischievous references: commissioners of customs and excise v samex 1983 CMLR 194- question that was asked but dismissed. Concrete theory Costa v Enel. Abstract Theory HP Bulmer v J Bollinger [174] Ch 401. Abstract theory concerns courts decisions never subject to appeal idea that lower courts making no referral only court of last instance has ability to do so. Concrete theory now accepted as correct. Acte Clair Principle – national court discretion to refer. Materially identical. Case CILFIT v Ministro della Sanita: irrelevant, already interpreted by CJEU and application obvious.
Summary of article 267 TFEU: Proceedings after the reference. Duty on national court to apply reference. CJEU ruling will include: answers to questions sent by court, clear interpretation of EU law.
Arsenal v Reed suggested ability to disregard anything identified as outside as outside of CJEU powers. Court of Appeal overruled Laddies judgment in CJEU Arsenal case. Lower courts discretion to refer. Last instance courts mandatory to refer.
