Preliminary Referencing Flashcards
CJEU can decide on 2 types of cases… plus article
Art 267(1) TFEU interpretation of treaty validity and interpretation of acts of the institutions, bodies, offices or agencies of the union
difference between application and interpretation plus case
bulmer v bollinger
application - NC have final say
interpretation - CJEU have final say
validity and invalidity of union law (2) plus case
firma foto-frost
NC can declare eu law valid, but not invalid
CJEU has exclusive discretion to declare eu law void
who can refer a q to cjeu? plus article
art 267(2) TFEU any court or tribunal of a MS
what is a court/ tribunal? (5) plus 2 cases
Vaassen criteria
- permanent
- compuslory jurisdiction
- inter partes procedure
- should apply rules of law
- independent; no organisational link to parties - Schmid
early cases took a ___ view of court/ tribunal plus case
narrow view
Nordsee - arbitrator not C/T
later case have taken a ___ view of court/ tribunal plus case
broader view
Danfoss - arbitrator was C/T
“Of a MS” case
Miles v Ecoles
Discretion to refer art 267(2) TFEU plus case
all courts MAY refer
Cartesio
duty to refer art 267(3) TFEU
“against whose decision there is no judicial remedy under national law” MUST refer provided the decision is necessary to enable a judgement
duty to refer
art 267(3) TFEU
abstract theory
only bodies whose decisions are never subjected to appeal e.g. Supreme Court
duty to refer art 267(3) TFEU concrete theory plus case
any body where C/T decision isnt subject to appeal in the type of case
Costa
Bulmer v Bollinger factors for courts to consider when deciding whether or not to refer a Q (6)
time to get ruling importance of not overloading CJEU need to formulate Q clearly difficulty and importance of point expense wishes of parties
R v International Stock exchange; when deciding whether or not to refer, should bear in mind… (4)
differences between national and eu law
danger of ruling on an unfamiliar field
need for uniform interpretation
advantages of CJEU in relation to EU interpretation
references arent required where (3)
EU Q is irrelevant to case
CJEU has already answered q - acte eclaire
answer is obvious - acte clair
irrelevant qs (2) plus case and article
Art 267(2) TFEU
only need to refer if answer is necessary
duty of national court to assess relevance
pigs marketing board
acte eclaire 2 cases
joined costa - same q as in van gend en loos
acte eclaire CILFIT
where correct interpretation of eu law is so obvious theres no reasonable doubt, obligation to refer doesnt apply
what is acte eclaire
CJEU has already answered it
acte eclaire CILFIT
national courts must be sure that the answer is
equally obvious to CJEU and other national courts
acte eclaire CILFIT
when determining if the answer is obvious, national courts must consider (3)
different language versions of other provisions
the fact eu law has its own terminology
provision must be considered in context and interpreted in light of eu law as a whole
what is acte clair
answer is obvious
acte clair 2 cases
X and Van Dijk
acte clair
if a lower court has referred a q to CJEU…
if lower court has referred a q to CJEU, the higher court hearing the appeal can still decide the issue falls in acte clair and decide itself
