5. Preliminary rulings Flashcards
legal basis
Article 267 TFEU
purpose of the preliminary rulings
- interpretation of the Treaties (Art. 267 para 1a)
- review validity of acts of the institutions, bodies, offices or agencies of the Union (Art. 267 para 1b)
who may or shall refer a preliminary question to the ECJ?
Art. 267 para 2:
- A court or tribunal
- of a MS
- if it considers that a decision on the question concerning the interpretation of EU law is necessary to enable it to give judgment
- a court or tribunal of first instance or appeal MAY (unless obliged)
Can a Supreme Court of a MS request a preliminary ruling on validity of an act of an institution?
YES - it is an obligation of Supremen Court to refer
- Monopoly of the ECJ
- No acte claire doctrine
Can a Supreme Court of a MS request a preliminary ruling on validity of a chapter of a Treaty
NO - you cannot refer a preliminary ruling on validity of primary law.
Can a Supreme Court of a MS decides itself on validity of an act of an EU institution?
NO - it is an obligation of Supremen Court to refer
- Monopoly of the ECJ
- No acte claire doctrine
Can a judge refuse to not request a preliminary ruling on interpretation of the Treaties?
YES
Unless there is no judicial remedy under national law (Art. 267 para 3)
Is the judge obliged to request a preliminary ruling on interpretation of the Treaties?
YES if there is no judicial remedy under national law (Art. 267 para 3) unless: - identical question in substance - well-establishes case law of the ECJ - acte clair doctrine (Cilfit)
Can a judge refer a preliminary ruling on interpretation of the Charter?
Yes, but only if the subject matter of the main proceedings is within the field of application of EU law. e.g. Ackerberg Franson
Can a national judge refer a preliminary ruling on interpretation of the Title 5 of the TFEU?
NO - Article 275 TFEU excludes the application of CFSP title
what can the preliminary reference on interpretation relate to?
- Interpretation of the Treaties (primary law)
- Interpretation of the acts adopted by institutions, bodies, offices, agencies (secondary law)
- binding or not
- mentioned in Art. 288 TFEU or not
- with or without effect
- unilateral or conventional
Can a national judge refer a preliminary ruling on interpretation of a commercial agreement with Canada?
YES - conventional EU law as a part of EU law is accepted in preliminary rulings
what can the preliminary reference on interpretation NOT relate to?
- public international law (unless and international treaty makes the ECJ competent)
- national law (unless the national law copies EU law)
- agreements between individuals (unless they refer to the content of EU rules)
Can a national judge refer a preliminary ruling on interpretation of public international law?
NO, unless ECJ is made competent in the international treaty
Can you ask for an urgent preliminary ruling on cases related to Title 5 of Part 3 TFEU?
YES - there is a possibility to have an urgent preliminary ruling procedure for all the cases related to title 5 of part 3 TFEU (Art. 105 et. 107 RPC) provided for in art. 267 para 4 persons in custody