EU - Preliminary References

Question 0

Vaasen

Answer 0

Any court or tribunal may make a reference, provided:

• it is established under national law
• it oversees/enforces rules of law
• MS has some involvement in appointments/framework
• it is a permanent body
• it is the proper (compulsory) body charged with arbitration in appropriate situation

Question 1

Art. 267 TFEU

Answer 1

Court of MS is entitled to make a preliminary reference to the ECJ concerning:

• interpretation of the Treaties
• validity/interpretation of acts of EU institutions

a) National courts have discretion to decide whether to make a reference
b) Highest appellate court must make a reference

Question 2

Broekmuelen

Answer 2

Appeals committees of professional bodies may also be considered courts or tribunals, as not all the Vaasen criteria need to be satisfied

Question 3

Nordsee

Answer 3

An arbitration tribunal, to which members have voluntarily submitted, is NOT a court or tribunal for the purposes of Art. 267

Question 4

Costa v ENEL

Answer 4

1. Courts, against whose judgements there is no judicial remedy, must make a reference; such courts might, therefore, not be the supreme court
2. Imperfectly phrased questions relating to application/validity of national laws in light of EU law will be rephrased by ECJ to discuss issues of interpretation when a preliminary reference is made

Question 5

Bulmer v Bollinger

Answer 5

Courts with discretion to make a preliminary reference must be guided by:

• whether the point is conclusive for resolution of the current dispute
• whether there is a previous ECJ ruling
• whether the matter is acte clair, i.e. free from reasonable doubt

Question 6

Arsenal Football Club v Reed

Answer 6

Preliminary references are limited to points of law; ECJ’s jurisdiction does not extended to deciding matters of fact

Question 7

Da Costa en Schaake

Answer 7

1. Establishes system of precedent; ECJ law is supreme
2. Where facts are similar to previously decided case, courts are not required to make a renewed reference under Art. 267 (even if they are a court of last instance)

Question 8

CILFIT

Answer 8

1. Establishes acte clair doctrine
2. Court of MS is under no obligation to make a preliminary reference where the correct application of EU law is so obvious as to leave no reasonable doubt as to outcome; but it must be equally apparent in ALL member states, allowing for:
   - differences of language, as all drafting languages are equally valid
   - unique terminology of EU law
   - different meanings of legal concepts between MS
   - status of issue within context of EU law as a whole

Question 9

Van Gend en Loos

Answer 9

1. EU law is supreme, insofar as ECJ will provide definitive view on interpretation of EU law
2. Preliminary references to ECJ do not concern application of the Treaties; ECJ will always look at whether they have been correctly interpreted

Question 10

Pretore di Salò

Answer 10

National courts have wide discretion when deciding whether or not to make a preliminary reference

Question 11

Foglia v Novello

Answer 11

ECJ may refuse to give a ruling following a preliminary reference if:

• question is contrived to deliver a particular outcome
• question is general/hypothetical and unrelated to the facts of the case

Question 12

La Pyramide

Answer 12

ECJ may refuse to give a ruling following a PR if there is insufficient factual background supplied when reference is made

Question 13

Foto-frost

Answer 13

National courts may not declare an EU act invalid; therefore, where there is uncertainty regarding its interpretation, the national court should make a reference