Preliminary References 1 Flashcards

Question

The way to think about preliminary references (structure)?- no.6?

Answer 1

6. What is the effect of the ECJ’s response? And what is effect of ecj response- all very well and good ask for q and give u answr- what do you have to do witht hat answer

Answer 2

7. Are preliminary references fit for purpose? Are prelim ref fit for purpose- are they dit or do they need reform?

Answer 3

Simmenthal: 4 ‘Article [267] is based on a distinct separation of functions between national courts on the one hand and the Court of Justice on the other hand.’ ecj saying no one is superior were all equal but we have diff functions- article 267 way of eplaing those diff functions

Answer 4

What are those distinct functions? - ECJ – Interpretation in abstract - National court – Application of interpretation to facts

Answer 5

Problem – often there is not clear distinction btw appl and itnerp

Answer 6

So in gemrany they have bvery pure beer – but that’s german view of beer- so they banned a partic adjtive been put in beer cant sell if have it- someone says that’s a breach of eu law – national ct didn’t no what to do so referred upt oe cj – ecj should be no restrictions unless for public health reason and tha got passed back for antionalc ts to then apply that but the ecj worried about nto given enough guidance so said a total ban of this additive is disporopritonate- u are not allowed total bans of this sort- is that really an interp? On another hand theyre applying that to this case- so lines btw interp and appl often blurred- and soemtiems ecj goes even further so sometimes ecj suggest alternatives-says ur not allowed total ban but may be able to have – strict labelling rules – again that someway s interp of eu law – but what does that lead national ct to apply = nothing and so that distinction clear sep of functions acc sometimes lost – good in theory but sometimes diff to apply

Answer 7

1. Interpretation of the Treaties - They can aska bout interp of treaty- so what does articl blardy blar require – 2. Validity and interpretation of acts of the institutions - Ask about interp of acts of inst and ecj can q validity of acts of inst- what are acts- article 288- what do we mean –give me an act of institution- a regulation or a directive really good- so can ask q about interp or ask about interp and valid of secondary law – and that is so important – massive link to last lecture did with martin article 263 – this provides a limited alternative

Answer 8

Question: Can national courts refer matters that are ‘purely internal’ but that reference EU law? -whatever say about tony blair – 1 thing he revolutionised the competion law in uk by taking all eu law and applying I uk so it may ref to bits of eu law- q then becomes if u are antonal ct national law infront of u based on eu law can u ask qs – don’t need to cos just national but makes ref to eu – thought answer was no but

Answer 9

Drodzi – ‘it is manifestly in the interest of the Union legal order that, in order to forestall future differences in interpretation, every [Union] provision should be given a uniform interpretation irrespective of the circumstances in which it is to be applied.’

Answer 10

Cjeu – it is manifestly – so – basically answr yes- so if youre talking about matter just national law –comp law u can ask ecj qs- cos if u don’t ask questions now a practice may emerge which income with ecj later

Answer 11

- Article 275 TFEU: No jurisdiction for measures on CFSP | - Article 276 TFEU: No jurisdiction to review police operations in the area of freedom, security and justice.

Answer 12

Wholer art 267 national ct or trib making ref of ecj So q what is national ct or tribunal for purposes of art 267- hight ct – supreme ct – consititonal ct – county ct] -Legal test- says supreme ct do not apply test it obvs a ct – what u often don’t do I know legal test and apply no matter what

Answer 13

National ct or tribunal much wider than understanding ct is- so u havr this made up body infront of u in exam q- frming licieng committee – normally tell what asking by choice of act – so 1st this is q governed by eu law alone- doesn’t matter what – mattete of eu law alone – national law says this – dorse said …? – -Question: What do you think the answer is? Dorsch – ‘a question governed by [Union] law alone.’

Answer 14

Factors (legal test): 1. ‘whether the body is established by law’ 2. ‘whether it is permanent’ 3. ‘whether its jurisdiction is compulsory’ - If you have to abide by judgement 4. ‘whether its procedure is inter partes’ - btw parties needs to be advercsial type dispute 5. ‘whether it applies rules of law’ - Whethe it applies rules of law 6. ‘whether it is independent’- genuianelly is it indep from either of parties – if run by one parties less likely run

Answer 15

You don’t need to satify all to be ct or tribunal not a cummulateive test- just in exam 5 out of 6 very lieky to be regarded as national ct tribaunal art 267 – if sat 2unlikely 0 = not NEED TO COME TO A CONCLUSION TO GET HIGHER QUALITY