Article 267 Preliminary Reference Procedure

Question 1

Can individuals go before the ECJ to enforce their EU legal rights?

Answer 1

• Individuals do not go before the European Court of Justice to enforce their EU legal rights. Instead, they do this before their national courts.
• However, giving national courts or tribunals the power to rule on matters of EU law is potentially problematic as there is then no way of ensuring that EU law is interpreted and applied in the same way across member states.

Question 2

In relation to the national courts needing clarification on law, what is the role of the ECJ?

Answer 2

national courts may need to ask for clarification of EU law matters or clarification regarding the compatibility of national law with EU law.

The ECJ therefore has a role in assisting national courts and tribunals in the interpretation of EU law and in doing so has the power to hear preliminary references from national courts and tribunals (Art 267 TFEU).

Question 3

What is the preliminary ruling procedure?

Answer 3

• The preliminary ruling procedure is a mechanism that allows any national court or tribunal to refer a question of EU law to the ECJ and ask the court for interpretative guidance.
• The ECJ does not rule for or against the parties.
• In other words, it does not apply the law to the facts, it simply interprets the law and answers the questions referred.
• The national court or tribunal must then apply the ECJ guidance to the factual situation before them.

Question 4

Art 267 (ex-Art 234 TEC): What is the jurisdiction of the ECJ?

Answer 4

The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:
a) the interpretation of the Treaties
b) the validity and interpretation of acts of the institutions, bodies, offices, or agencies of the Union

Question 5

where a question is raised before a court or tribunal of a MS, what may they do?

Answer 5

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 judgment, request the Court to give a ruling thereon.

Question 6

What happens if there is no judicial remedy under national law?

Answer 6

Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.

Question 7

What happens if a question regards a person in custody?

Answer 7

If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay

Question 8

Are there issues arising out of the procedure?

Answer 8

There are a number of issues arising out of the procedure, mainly concerned with when questions should be referred and what sort of question are to be referred.

Question 9

What is the issue of genuine dispute?

Answer 9

First, there must be a genuine dispute. It there is not, the ECJ will refuse to accept the reference.

The Foglia (1981) cases are a useful illustration of the need for a genuine dispute:
- In these cases, the ECJ confirmed that it was not its job to give general abstract guidance but to contribute to real cases.

Question 10

What if the question is hypnotical, irrelevant, or unclear?

Answer 10

• The ECJ will refuse a preliminary ruling if the question referred to them by the national court or tribunal is hypnotical, irrelevant, or unclear.
• In other words, the question must be a genuine question relating to the case and not just an interesting aside that arises from the facts (Melilicke (2007)).
• It must be relevant in the sense that it must be important to the national courts /tribunals ability to decide the case. Relevance is determined by the national court making the referral (Dzodzi (1990)).

Question 11

Discuss how the question must be precisely and clearly phrased?

Answer 11

• Finally, the question put by the national court or tribunal must be precisely and clearly phrased (Telemarketsicabruzz (1993)).
• If it is not clear what the national court or tribunal is asking and what point of EU law requires examination and clarification, the ECJ cannot offer interpretative guidance and thus a preliminary reference will be refused.

Question 12

Why do these restrictions make sense?

Answer 12

Given that the purpose of the preliminary reference procedure is to ensure the coherence of EU law, these restrictions make sense, as in each case the coherence and uniform application of EU law is not under threat.

Question 13

What happens once its established that an institution is a court or tribunal within Art 267 TFEU?

Answer 13

• Once it is established that an institution is a court or tribunal within Article 267 TFEU (see Dorsch (1997)) it must be considered whether the preliminary reference procedure offers the opportunity to refer or places the court or tribunal under an obligation to refer.
• The lower courts/tribunals therefore have discretion as to whether they refer a question or not on the basis that an appeal can be made were a referral should have been made.

Question 14

where is there an obligation to refer?

Answer 14

where a question of validity of EU law arises, this must be referred.
- In addition, in certain situations the court or tribunal will find itself under an obligation to refer.
- This applies to the highest court in the Member State for that particular case at issue.
- Therefore, the highest court in Member States if there is, for example, no right to appeal to that highest court. Ditto re tribunals.

Question 15

What are the exceptions to this obligation?

Answer 15

• If there is a previous ruling on the same question there is no need to refer although a reference can still be made (Da Costa 1963)), (CILFIT 1982).
• This seems to suggest a development of a doctrine of precedent on which earlier decisions of the ECJ bind the national courts.
• It is, however, important to remember that national rules of precedent have no bearing on the discretion or obligation to refer.
• For example, if the Supreme Court has ruled on the interpretation of EU law, a lower court can still make a reference, and if in the circumstances the lower court is the final appellate court, it will be obliged to do so.
• If the answer is obvious under the doctrine of acte clair (CILFIT), there is also no requirement to refer the question.
• However, the criteria of acte clair set out in CILFIT should be relatively difficult to satisfy because they require significant linguistic expertise and knowledge of European law by the national courts.

Question 16

How has the preliminary ruling procedure been defined?

Answer 16

The preliminary rulings procedure has been defined as an organic connection between the national courts and the Court of Justice (Shaw 2000) and has been said to be essential for the preservation of the Community character of the law, it has the objective to ensuring that in all circumstance the law is the same in all states (Rheinmuhlen-Dusseldorf) (1974).

Question 17

How did the procedure begin?

Answer 17

• It began as a horizontal relationship based on co-operation but arguably has developed into something rather more hierarchical.
• The fact that even final appellate courts are not obliged to refer matters of EU law where there is a previous decision that can be applied suggests that the ECJ strongly encourages reliance on previous decisions even if the facts are not identical.

Question 18

How does the ECJ behave?

Answer 18

• Rather than acting as a sort of specialist partner providing each court with guidance on particular issues, the EC] now behaves more like a superior court in the traditional since.
• However, given the ECJ’s caseload, this makes some sense.
• It seems unnecessary for the ECJ to provide a preliminary ruling on a topic which it has previously ruled on, especially if that ruling is recent.
• It is however importance to retain the national court’s discretion to ask for further clarification or pose a question which gives the ECJ the opportunity to depart from its earlier rulings.

Question 19

Overall, what is the preliminary reference procedure?

Answer 19

• Overall, the preliminary reference procedure is an important tool in ensuring that EU law is applied consistently in Member States, because it provides a connection between the national courts and the EU which can be accessed with relative efficiency and which ensures that questions of interpretation on EU law are not ultimately left to the whims of national judges.
• However, this outcome is not guaranteed, especially where the CILFIT exceptions are applied broadly.