Preliminary rulings Article 267

Article 267 gives the CJ jurisdiction to make preliminary rulings at the request national courts of the MS. This is an interpretation of the EU law. The purpose of these rulings is to ensure that EU law has the same meaning and effect in all MS. Provides a mechanism enabling national courts to obtain authoritative rulings on the interpretation or validity of EU law

Article 267 has a broad significance in the role which it played in the development of EU law. The principle of direct effect was established from an article 276 reference. The article provides individuals, through the national court, with a means of accessing the CJ. Binding effect of preliminary rulings a preliminary ruling binds all national courts and tribunals and should be applied in subsequent cases. This was established in International Chemical Corporation. Courts jurisdiction under Article 267 The court has no jurisdiction to rule on the application of EU law, the interpretation of EU law, or the compatibility of EU law. R v HM Treasury ex parte BT - The UK had implemented Directive 90/531. Court held that liability to damages would arise if the 3 Factortame conditions were met; 1. The directive was intended to confer rights on individuals 2. Breach was sufficiently serious 3. There was a direct and casual link between the breach and loss In this case the court went on to declare that the Directive was unclear and therefore capable of more than one interpretation, the Commission had never challenged the UKs interpretation. Therefore the UKs error was excusable and the breach not sufficiently serious(didnt meet pt.2 of Factortame conditions) This interference caused some difficulties. Arsenal FC v reed ( need more info)

Court or Tribunal
Various factors are taken into account when trying to establish when trying to establish whether a body is a court or a tribunal and therefore if it is able to ask for a reference. Over the years CJ has accepted references from, administrative tribunals, disciplinary bodies etc Dorsch Consult In Broeckmeulen a committee asked for a preliminary reference from CJ. Question was raised whether the committee was classed as a court or tribunal. CJ held that in the absence of right of appeal to the ordinary courts, the committee was a court or tribunal as it operated with the consent and cooperation of the public authorities and delivered final decisions following an adversarial procedure.

Refusal to accept references the court has refused to accept references where;
there is no genuine dispute between parties,

where the questions referred are irrelevant or hypothetical where the national court has failed to provide sufficient legal or factual info

No genuine dispute Foglia v Novello This was the first case in which the court refused its jurisdiction to give a ruling on an issue of EU law. It was agreed that N would reimburse F for any import duty costs levied on him by the French in breach of EU law. The Italian court sought a preliminary ruling on the illegality of the import duties imposed by the French. The CJ refused to and said that this was a hypothetical scenario created just to question the legality of the French law and was not genuine and there was no genuine dispute. The CJs decision has been criticised. The Court held that it must display special vigilance when a question is referred to it with a view to permitting the national court to decide whether the legislation of another member state is in accordance with union law. A similar approach was taken by the CJ in Bacardi v Newcastle FC where the court refused to accept a reference from the English high court concerning French legislation on alcohol advertising and EU rules on the free movement of services. Hypothetical or irrelevant questions in Meilicke v ADV there was no evidence that the issue raised for the CJ to interpret was relevant to the case. CJ repeated that it had no jurisdiction to give opinions on hypothetical questions. Insufficient legal or factual information The approach in Foglia and the cases after it show that the CJ will only respond to a reference if the facts and the legal issues are made clear in the order for reference. In Circostel the courts refused jurisdiction because the national court had supplied insufficient on the facts and national provisions.

Jurisdiction of national courts to refer

Obligation to refer- this regards which courts or tribunals can raise a question of interpretation or validity. The court must be one that against whose decision there is no judicial remedy under national law Article 267 (3) TFEU Court of last instance Two approaches to court of last instance Concrete approach a court which from there is no appeal in this case Abstract approach - a court which there is NEVER an appeal from The concrete approach is favoured by the ECJ as shown in Costa and now by UK judges too in Hagen. Costa v ENEL Courts against whose decisions there is no judicial remedy must refer the matter to the Court of Justice. Therefore if; 1. There is no right of appeal (been to highest court already) 2. There are questions of EU law that need to be answered

3. The court must make a reference to the CJ

Avoiding obligation to refer; CILFIT In CILFIT it was acknowledged that there are exceptions to the obligation to refer, the courts must consider whether a ruling from the EU is needed for it to deliver the judgement. CILFIT v Santia in this case it was found that; A national court of last resort has no obligation to refer where a question of EU law is not relevant National court of last resort is not obliged to refer if the Court of Justice has previously ruled on that point Where the interpretation of EU law is so obvious as to leave no doubt about its meaning

In Da Costa it was established that a previous ruling removes the obligation to refer where the facts and questions of interpretations are identical. Acte Clair doctrine this doctrine is applied to a provision of EU law whose interpretation is so obvious as to leave no scope for reasonable doubt as to its. When the meaning is clear the is no need to refer ( CILFIT). The national court must be convinced it is also obvious to the nat courts of other MS. The criteria in CILFIT are hard to satisfy and this had led the courts to interpret the doctrine loosely. Incorrect application of acte clair doctrine could cause problems for the MS. In Kobler v Austria it was held that damages would arise if a national court failed to meet its obligations regarding Art 267, eg by misapplying acte clair. In Traghetti v Italy court declared that a court of last instance could be liable for damages caused by manifest errors.

Discretion to refer
Article 267 (2) Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgement, request the Court to give a ruling thereon. The final decision remains with the national court. Neither parties nor the CJEU can compel it to make a reference. Previously in Bulmer v Bollinger Lord Dennings statements discouraged references causing judges to be reluctant to refer. However, later on the English Courts emphasised the advantages of the Court of Justice interpreting EU law, resulting in a more positive approach towards exercising the discretion.

When should the discretion to refer be exercised?

Relevance Dzodzi established that it is for the national court to determine the relevance of the question referred. However the Court of Justice can reject references that seek an interpretation bearing no relation to the main action. The case must be relevant or else CJ will reject. Acte clair if the provision of EU law is clear then the reference will not be needed. However the CILFIT criteria for acte clair demand a high level of language expertise on the part of the national court , as well an overview of the EU law and therefore are not very easily satisfied. Bingham pointed out the advantage of referral numerous times. In Samex he stated that the CJ has the ability to make comparisons between texts in different languages and has a panoramic view of the EU and possesses detailed knowledge of the EU legislation. Again in R v Stock exchange Else he stated that if a national court has any real doubt, it should ordinarily refer Previous referral a previous ruling by the CJ on a similar matter does not prevent from another reference Da Costa. The CJ retains the right to depart from its previous rulings and may do so when a different conclusion is warranted by different facts. Precedent of higher courts these have to impact on the discretion to refer. A ruling by a higher national court on the interpretation of EU law does not prevent lower courts from requesting a ruling on the same provisions. Dusseldorf case 146/73 Reform these days preliminary rulings can take up to 20 months. This can be a very long time. Urgent cases such as when person is in custody, the court of justice will react with minimum time. Other methods of reducing the case load of the CJ were discussed in the Due Report 2000, including removing the obligation to refer and creation of decentralized regional courts with the power to give preliminary rulings.