preliminary reference

Question 1

benefits of a uniform interpretation of EU law

Answer 1

if rested in the hands of the differnt national legal systens- diverse and conflicting interpretations
-policies and objectoves pursued by the EU could be undermined (no uniform meaning)
-this undermines its effectiveness in pursuit of its objectives

Question 2

preliminary reference procedures article 267 TFEU
developed by CJEU

Answer 2

requires or allows national courts to refer questions concerning the validity or interpretation of EU law to the CJEU
-CJEU gives a preliminary ruling
-case returns to national courts to apply and determine remedies

-enables CJEU to clarify a point of interpretation or whether a measure of Eu la is valid

Question 3

text of article 267

Answer 3

preliminary rulings on a) interpretation of treaties b) validity and interpretation of act of the institutions, bodies, offices or agencies of the union
(brought by court or tribunal)
- cases where no judicial remedy under national law shall bring case
-cases where considers that a decision on the question is necessary to enable it to give judgement- may request

Question 4

limitations to the role of the procedures

Answer 4

although claifys points of interpretation
-is not used to apply the law to the facts or determins rights and apply remedies
-application remains with the national courts

• tensions between uniformity and a decentralized nature:
  would have been easier to achieve uniformity by creating an appeals procedure rather than a reference procedure
  however a part of the function of the PRP provids unformity in the decentralized administartive system
  -relies on national court making PR

Question 5

national courts role

Answer 5

• if a contraversial question of EU law and cannot be appealed further internally, must refer to the CJEU
  -if can be appealed further internally, court has the option of making a referral

Question 6

3 key issues to consider for PRP

Answer 6

1. subject matter (only be made if concern interpretation or validity of EU law)
   -interpretation- meaning of EU law (created doctrines of direct effect and supremacy)
   -validity- whether a measure was adopted illegally (serious doubts on validity of a measure must be referred- Foto Frost 1987)
   -when measures are refferred and interim injunction suspending application of the law is granted by the national courts when (zuckerfabrik 1991)
2. the court has serious doubts as to the validity of the community measure
3. there is an urgency and a threat of serious and irreparabke damage to the applicant
4. has the national court taken account the unions interets
5. referring body (court or tribunal)
   -Dorsch consult case 1997- indicative criteria to consider
   -legal bases, permanent, compulsory jurisdiction, legal argumentation, applies rules of law, independant
6. required or optional
   -no domestic appeal= required (costa v ENEL 1964, doesnt need to be highest just no appeal)
   -others= optional
   - 2 circumstances where final court not required- previous ruling clarified this, no scope for reasonable doubt
   (CILFIT v MOHC 1982- set out these rules)

Question 7

procedure

Answer 7

-decision to refer- national courts (discretion and can do irrespective of parties wishes- Huet case)
-right to refer case takes precedent over naional rules regarding judicial procedure- Melki 2010
-rerfernce contains- question, facts and relevant law
-rulings- fully binding on national courts

courts may reject PR because-
1. interpretation of EU law is unrelated to the facts of the action or its purpose
2. the problem is hypothetical
3. court does not have factual or legal material to give useful answer- PreussenElektra 2001

Question 8

effectiveness and unifrmotiy

Answer 8

-preliminary rulings- articl 267 TFEU
-reflected in consorzio v rete 2018- whereby an Italian national court made a reference to the CJEU for a preliminary hearing in regards to a public contract for the supply of services
-prevents diverse and conlficting interpretations
-used to clarify points of law

-sufferes from judicial activism- rasmussen, as a result of both his own opinion, and negative reactions from social groups in response to the CJEU’s action, he concluded that the CJEU had overstepped its limits and consequently “undermined the social consensus that should support its judicial activities.”
-Tridimas- “assum[ing] for itself powers which go beyond its judicial function.
-cappelletti the European activism is “running wild to the point of seriously risking disrepute and ruin”,
-craig and burca -by on occasions allowing its judgements to be “influenced by relatively ‘non-legal’ arguments made by Member States…or by critical responses from the public or from national and Union Sources.”
-reflected in Barber v Guardian, whereby in regards to the terms of Article 119 EC, the court expanded the scope of equal pay to include pensions paid on redundancy. This is an example of judicial activism as the court went beyond the literal text of the treaty, which describes ‘pay’ as only including “ordinary basic or minimum wage or salary and any other consideration.”