Article 267 Flashcards

Question

Kaefer v France

Answer 1

Facts: Concerned applicants who were EU citizens who sought residence in Polynesian territory. Both were denied and sought to make a reference from the equivalent of a Polynesian HC. Issue: Whether a court of the French Republic in Polynesia could make a preliminary ruling to the CJEU. Held: Part IV of the EEC Treaty (Art 136) empowers institutions of the Community to lay down provisions relating to overseas territories and countries. Conclusion: There was jurisdiction as France recognised that the Polynesian tribunal was a French court.

Answer 2

Facts: Concerned a dispute between the parties before the Portugese Tax and Customs Authority. Issue: Whether the PTCA could send a preliminary reference as the authority is not permanently sitting, ie. The body is formed following the dispute. Argument: The panel is waiting to be crystallised following a dispute therefore, it could be permanent. Counter: Multiple temporary bodies are being constituted for the dispute. Held: No room existed where there was a permanent sitting. The authority itself is permanent and provided for in law. The court is concerned with the permanence of the institution itself and not the permanence of the individual members. Compared to an arbitral tribunal: Some tribunals are formed solely for that arbitration and dissolve afterwards. This referring body: Was established by law. Was included in the list of national courts in the text of the constitution Was permanent (not all arbitral bodies meet this criteria) The arbitral activities were used as an alternative means of judicial resolution in tax disputes. Compulsory. Independent: Both its members and the body Conclusion: Yes, a court/tribunal for the purposes of Article 267.

Answer 3

Courts where their decisions have no judicial remedy under national law, ie. The court of final appeal. The answer to the question referred must be necessary in order to resolve the dispute.

Answer 4

Abstract COncrete

Answer 5

Lofin makin v Minister for justice Lyckenberg Cartesio

Answer 6

Issue: Whether the court is obliged to make a reference on the basis that there was potential for an appeal. The appeal required that Cooke J grant leave to appeal. Held: Cooke J was entitled to refuse a grant of leave. In those circumstances, he could choose to be the court of final appeal. Thus, reserving an obligation to refer a question.

Answer 7

Facts: The applicant had been convicted of a criminal offence (smuggling rice) before the court of appeal in Sweden. That court was not empowered to send cases on appeal to the Supreme Court without the approval of the superior court. Issue: Did this need for approval from the Supreme Court mean that the Court of Appeal was, in effect, a court against whose decisions there was no judicial remedy? Held: Decisions of a national appellate court which can be challenged by the parties before a supreme court are not decisions of a 'court or tribunal of a Member State against whose decisions there is no judicial remedy under national law' . Where the decisions of a court can be appealed, there is no obligation to refer, even where that appeal is subject to conditions.

Answer 8

Facts: Concerned an applicant who had registered a Hungarian address for a company. Sought to change it to a non-Hungarian address. This was refused by the company's registration office. It was argued that it was a breach of EU law under Articles 49 and 54 TFEU. However, the decisions of the CRO only had an extraordinary right of appeal where it was in the public interest. CRO was effectively the final court of appeal in this instance because the case didn’t fir the criteria to be referred to higher courts. Issue: Was the CRO a court of final appeal as the right of further appeal was extraordinary? Held: There is clearly an appellate court operating above this court. Therefore, there is no obligation to refer as it was not a court of final appeal, despite there being certain criteria that have to be met to be granted a right of appeal. Reaffirmed the approach in Lyckeskog. Criticism: This approach appears to be counter-productive.

Answer 9

Issue: Whether it was permissible for an appeal court to overturn and thus withdraw a preliminary reference already made by a lower court. Held: No. It is up to the trial court to decide to make a reference and the ECJ itself to verify whether the reference is necessary. Higher courts must abide by the decision made to refer to ensure clarity and legal certainty: This can only be revoked/amended by the referring court.

Answer 10

Peterborek Getin Noble

Answer 11

Facts: The Brussels CoA had referred a question in respect to tax rates. The issue had not been brought up initially and was only raised on appeal. National procedural rules prohibited the court from making a reference on its own volition to the CJEU. Issue: Should EU law be interpreted to mean that a national court must set aside or otherwise disregard a national rule which prevents it from referring a question to the CJEU of its own volition Held: A national procedural rule preventing a national court from raising a matter for reference of its own volition was contrary to EU law, given the necessity of protecting legal certainty.

Answer 12

Facts: Concerned an allegation that a preliminary reference shouldn't be accepted because it was tainted. A member of the judiciary in Poland had made the reference and his appointment was made under a process that did not guarantee judicial independence. Issue: Because the judge was not properly appointed, could the court be deemed invalid and thus not be recognised as a court under Article 267? Held: The CJEU are not looking at the individual, they are looking at the institution Focused on the independence of the adjudicative institution. Can examine the independence of an individual only where there is evidence of bias.

Answer 13

1. If the question has already been answered 2. If the Answer is obvious- CILFIT

Answer 14

De Costa ICC

Answer 15

Joined Cases C-28-30/62 Da Costa Facts: The facts and questions that were at issue were identical to Van Gend. Issue: Does the court of final appeal still have an obligation to refer? Held: There is an obligation to refer where the court is a final court of appeal against whose decision there is no further appeal. But sending a question that has already been answered to the CJEU lacks purpose and substance. The national court can refer the matter if there some new factor that differentiates it from a previous case. If it refers with no differentiation, the CJEU will just restate the existing decision. Conclusion: There is no obligation to refer where the question and issues are the same.

Answer 16

Facts: Concerned a reference made in relation to a regulation. The specific issue under the regulation had already been considered by the CJEU. Issue: Whether the courts of other member states can still make a reference. Held: Yes. There may be circumstances where member states may have different legal systems, ie. common law/civil law. Decisions are addressed to the Member State referring, but they are applicable to all Member States, so the CJEU could deem the reference inadmissible/restate the law.

Answer 17

Case C-238/81 CILFIT Facts: Concerned a dispute surrounding a wool importer that was unsuccessful. The importer brought the matter to appeal to the highest appellate court and demanded that a reference be made. The respondent argued that this was not necessary as the answer was so obvious so as to remove the need for a reference. Held: Created the doctrine of Acte Clair: If a provision of EU law is widely acceptable, there is no obligation to refer. The mere fact a party alleges that there is a question does not result in an obligation to refer. It is within the court's discretion. Where there is an obvious answer from previous decisions then there is no obligation, even where questions are not strictly identical. The Cilfit Test: The correct application of EU law is so obvious so as to leave no room for reasonable doubt. The national court/tribunal must be convinced the matter is equally obvious to the other member courts. The matter must be equally obvious to the CJEU.

Answer 18

Subjectiveness: The test is extremely subjective and broad. There is no indication as to whether ‘doubt’ is subjective/objective. Recourse to other Member states: No guidance on whether all member states must agree/if there should be a majority.

Answer 19

M Broberg and N Fenger: Concerned about fragmentation: The courts are effectively tasked with making determinations on their own accord which will undermine the union. Article 267’s purpose is to act as a dialogue mechanism between the CJEU and the member state and CILFIT essentially removes the need for dialogue. Arnold: Believes that the doctrine gives member states plausible deniability to avoid making references by claiming that the interpretation of EU law was so obvious and clear.

Answer 20

Intermodal Van Dijk De silva Feench association

Answer 21

Facts: Concerned a party that had invoked a decision by the customs authority in relation to a product which they claimed was similar to another product. Issue: Whether a reference should be made where a similar decision has already been made such that the answer is so obvious. Held: The court is considered to harbour reasonable doubt when it has a different view than the authority in another member state. Issue: The authorities in Belgium and the Netherlands had different views on the resolution. Held: It was obvious to other members of the EU so the CILFIT criteria were satisfied. Criticism: 2 member states had differing opinions on the interpretation/application of EU law on the matter yet CILFIT was still satisfied.

Answer 22

Facts: Concerned a lower court in the same jurisdiction that had submitted a request for a preliminary reference. The SC was of the opinion that the question did not need a reference because the answer was so obvious. Held: The existence of an interpretive doubt on the part of the lower court doesn't preclude the existence of Act Clair for the final court in the same jurisdiction. Controversy: Contradictory as the lower courts see a need for reference, but SC can declare Acte Clair.

Answer 23

Facts: The SC of Portugal claimed that they had a clear interpretation of what a transfer of business meant. However, another tribunal in Portugal and a court in another EU member state interpreted it differently. Issue: Does three different interpretations of the same issue create reasonable doubt? Held: The SC’s certainty prevails. If the final instance decision maker believes that the answer is obvious, then the lower courts demanding a reference are wrong. Criticism: Allows for certainty on the part of the senior appellant court and uncertainty on the lower court.

Answer 24

Held: The court of the last instance envisaged exceptional cases where the CILFIT doctrine will be set aside so that a stricter obligation to refer be implemented.

Answer 25

Hard to reconcile these interpretations of the doctrine with each other. None of them apply the CILFIT criteria uniformly. Still remains doubt on whether reasonable doubt should be assessed subjectively or objectively. Note: Van Dijk and Ferreira are seen as opposed cases.

Answer 26

Facts: Concerned a dispute about cleaning service contracts. It was argued that if certain procedure was followed correctly, a different cleaning company would have been chosen. The claim was unsuccessful at the court of first instance, and the matter was referred on appeal to the CJEU. Issue: Whether a broad range of questions of compliance with national law and EU provisions could comply with each other. Whether the court of final instance must refer all these questions where it is asserted that some questions can be answered without references. Held: Broad lists of questions should be inadmissible. The court must refer discrete questions with attention to the requirements for content under Article 267, ie. The question must be genuinely necessary in order to resolve the dispute. This means that in addition to providing the questions the court should provide: A summary of the subject matter of the dispute, the relevant findings of fact and those facts leading to the questions referred. The relevant national provisions and details of relevant case law. Statement of reasons for the request.

Answer 27

Stated that from the beginning, there was a complete lack of clarity on how CILFIT should be applied. There contains no clarity on whether there should be a subjective or objective approach taken in assessing reasonable doubt. No clarity as to whether reasonable doubt in relation to the correct application of EU law in that particular case or in general. No indication of whether divergence in case law is sufficient to constitute reasonable doubt. The confusion leads to the criteria being applied differently among member states.

Answer 28

The Hoffman-Laroche-CILFIT Mismatch: Feasibility goes against principles of human rights law

Answer 29

The logic of the test and the exceptions it allows doesn't correspond with the way in which we determine if a question is necessary for the resolution under the Article 267 procedure. Hoffman emphasised a structural, objective duty to refer questions to the CJEU to ensure uniform interpretation of EU law across Member States. CILFIT introduced subjective exceptions allowing national courts to avoid referral if they find the answer obvious (Acte Clair). This shift from an objective duty to subjective discretion creates a logical inconsistency in the EU's preliminary ruling system.

Answer 30

The CILFIT criteria are flawed whether seen as a checklist or a toolkit: Checklist: The courts can never fully meet all conditions, making it impractical. Toolkit: Judges pick which rules to apply, leading to inconsistent and arbitrary decisions. Either way, the Acte Clair doctrine is difficult to enforce fairly.

Answer 31

There is no EU legal remedy if a party believes their case should have been referred to the CJEU under Article 267 TFEU. The CJEU holds that parties do not have an automatic right to a referral. However, the ECtHR suggests that if the criteria for referral are met, parties may have a right to it as part of a fair trial. This creates tension between the two courts' interpretations.

Answer 32

Must re-aﬃrm purpose and the scope of the duty to refer under Article 267(3). Emphasise that if it is a court of final appeal, they have an obligation to make a reference. CILFIT exceptions should be limited to ensure that Article 267 is not undermined. Remember the aims of 267: To harmonise EU law and ensure that it is uniformly applicable to all member states. Bobek Test: What shall be achieved is uniform interpretation, not correct application. The focus shall be on ‘a body of case law’, not on the correctness of the outcome in every single case.  Criticism: His proposal itself is not clear and all previous criticisms apply.

Answer 33

The CJEU is not obliged to accept a reference. Can refuse on the basis that the question has already been answered. Can refer the referring court to a particular case. Summary Decision: Can decline to hold a hearing and produce a written decision based on previous decisions it has rendered already.

Answer 34

Firma C Schwarze

Answer 35

Facts: The questions referred to looked to be concerned with the interpretation of the Treaty. The respondent Member State claimed they called for a determination of the validity of EU Acts. Broad questions on a range of EU law instruments. Held: Although some questions were too broad, others were admissible on the basis that the courts interpreted them in a manner that they were necessary. The court saw an obligation to accept the questions to ensure consistent interpretation of EU law.

Answer 36

The CJEU does not have unlimited patience: It will not always adopt a charitable approach to the referring courts. CJEU is not concerned with the motivation of the parties on why the reference is being made, ie. It does not care if the parties are using the preliminary reference to gain a strategic advantage through delay. NB: The CJEU is concerned with the admissibility of the substance of the questions. However, a national court can determine that a party is only mandating referral on the basis that they are attempting to gain a strategic advantage and will opt to not send a reference if they find that the question is not necessary to resolve the dispute.

Answer 37

Facts: Concerned an assertion that the national courts have equal power to determine admissibility. Held: The CJEU alone determines inadmissibility. The national court determines if a reference should be made but once a reference has been made, only the CJEU can determine its admissibility.

Answer 38

Craig and Deburca The relationship between the courts is no longer separate but equal.

Answer 39

1. Hypothetical/moot cases 2. q is unclear/too broad 3. Nice to know but not necessary

Answer 40

Where there is no longer any live issue between the parties. Where the issues raised are not relevant to the resolution of the dispute. Where the issue is hypothetical and the case has been settled. NB: The CJEU distinguishes between ‘necessary to resolve’ and ‘nice to know’.

Answer 41

Waste of judicial resources: The CJEU does not have an unlimited number of judges. The CJEU deals with other issues that are not preliminary references. Standing: Who are the appropriate parties to the dispute? How to satisfy the requirements for ‘necessity’? If the case is hypothetical/moot: It does not need to be resolved at all. Contrary to legal certainty as may be unable to pre-empt facts of the eventual scenario: It can lead to precedent which can have problematic consequences on binding future disputes where test cases are being used with no appropriate facts. Not a means for getting an opinion: not an advisory right.

Answer 42

voor woonen

Answer 43

Issue: Whether financial support provided to certain social services must be limited in a manner to prevent accusations of state aid. Held: There is a rebuttable presumption of relevance but the court must set out the factual and legislative context or at the very least explain the facts which have occasioned the reference and the precise reasons for its uncertainty about the application/interpretation of EU law. Cannot send general queries to the court of justice: must justify the questions.

Answer 44

Corsica Ferries

Answer 45

Facts: The complainants were operating a ferry service between Genoa and Corsica. They flew the Panamanian flag and were subject to different tax treatment. They claimed they were subject to discriminatory treatment contrary to the Treaties and commenced summary, ex parte proceedings before the Genovese tribunal seeking reimbursement of overpaid tax Issue: Because it was a summary, ex-parte matter, was the reference necessary to resolve the dispute? Held: Some questions could be referred and answered while some could not. Because it was a summary hearing, the issues hadn’t been fully ventilated, so there was no possible determination of necessity. Neither the summary nor ex parte nature deprives the national court of their ability to refer. Conclusion: Admitted 4 and deemed the other 4 inadmissible. NB: Did not reject all the questions: The CJEU could sever the inadmissible ones and answer the remainder.

Article 267 Flashcards

(76 cards)