Preliminary rulings Flashcards
Article 19(1) TEU
- The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts. It shall ensure that in the interpretation and application of the Treaties the law is observed.
Article 19(2) TEU
- The Court of Justice shall consist of one judge from each Member State. It shall be assisted by Advocates-General.
- The General Court shall include at least one judge per Member State.
Article 19(3) TEU
The Court of Justice of the European Union shall, in accordance with the Treaties:
(a) rule on actions brought by a Member State, an institution or a natural or legal person;
(b) give preliminary rulings, at the request of courts or tribunals of the Member States, on the interpretation of Union law or the validity of acts adopted by the institutions;
(c) rule in other cases provided for in the Treaties.
HOW THE PROCEDURE WORKS
National Courts hears case where individual claims that an EU law provision has been violated
The national court not clear about the interpretation or validity of the said EU law provision
National court stays proceedings and refers a question to the ECJ
ECJ answers the question
National court resumes proceedings before it and decides the case applying the courts interpretation/ decision regarding validity
What is it meant by ‘judicial function’?
Power to give binding determinations of legal rights and obligations.
Factors considered by CJ when determining whether a national body is a court or tribunal?
- Whether it is established by law/official recognition
- Whether it is permanent
- Whether its jurisdiction is compulsory
- Whether its procedure is inter partes
- Whether it applies rules of law
- Whether it is independent
Set out in Dorsch consult 1997
Broekmeulen, [1981] ECR 2311
• the CJEU ruled that a body established under the auspices of the Royal Netherlands Society for the Promotion of Medicine was a “court or tribunal” within the meaning of the treaty, even though that society was a private association.
Nordsee v Reederei Mond [1982] ECR 1095
• the ECJ. It was held in this case that the ECJ could not rule on questions referred to it by an arbitrator because an arbitral body is not a court or tribunal of a Member State as defined in Article 234.
pros and cons CLIFT & acte clair
Pros and Cons Pros • Reduces EJC’s workload • Efficiency • Closer co-operation with national courts
Cons
• controversy
• dilution of uniformity
• abuse/ error
Key Issues to Consider about procedure
- What constitutes a court or tribunal?
- What is a court or tribunal ‘against whose decision there is no judicial remedy?’
- When must such a court refer?
- How mandatory, in fact, is that obligation?
what is preliminary rulings
it is a mechanism by which national courts may seek definitive rulings from the ECJU on the interpretation on the treaties and EU secondary legislation.
Procedure for making a reference?
- It must be established that the body seeking to make a reference is a “court or tribunal”
- Then the court/ tribunal must show that a decision on a posit of EU law is “necessary”
- Depending on whether the court/ tribunal has mandatory or permissive jurisdiction; the court may be bound to make reference
- It will be important to consider whether the ECJ may reject the reference
What makes reference “necessary”
No direct answer but the case of CILFIT set out what is not necessary:
- The reference is not relevant to the conclusion of the case
- ECJ had already dealt with this reference (da costa)
- Doctrine of acte clair from the da costa case
Is the court/ tribunal obliged to make a reference?
This depends on whether the court is mandatory or permissive
A mandatory court is one whose decision cannot be appeals, so the high test court for that case (costa)
A permissive court is any other court
Courts obligations
Permissive courts are not obliged to make a reference
Mandatory courts are obliged to make references and a failure to do so may result in state liability as was in the case of kobler
