Beruflich Dokumente
Kultur Dokumente
Article 267 allows MS to request the ECJ to give rulings on EU law issues
Damages - Articles 268 and 340 allows for damages claims against institution by
individuals
Italian court asked whether a specific provision of national law breached Treaty
ECJ rephrased question: "If there is a conflict between ANY national legislation
and the Treaty, which takes precedence?"
3. Insufficient information
Telemarsicabruzzo v Circostel
It is permanent
It is independent - Syfait
Reasoning? No other forum available, decisions binding, affect right to work under EU
law
Nordsee v Reederei Mond
An abritrator wished to refer a question
Court/tribunal? No
Reasoning? Decision to arbitrate was purely voluntary; jurisdiction not compulsory
Syfait
The Greek Competition Commission (GCC) wanted to refer a question to the ECJ - but
it first had to be established that GCC fell within the meaning of court/tribunal.
A-G: YES
ECJ: NO
Hinged on independence factor from CILFIT
GSK accused of breaching Art 102 on competition law and the action was brought by
the secretariat of the GCC: Sec v GSK.
Secretariats role of the GCC: to investigate
GCCs role: to adjudicate
President of the GCC: also involved in supervising the Secretariat
A-G Jacob's arguments
Thought GSK satisfied Dorsch Consult criteria as;
- The composition of the GCC panel: 2/9 members had to be legally qualified, 2 other
posts for people with knowledge of competition law. Therefore majority non-lawyers. He
thought this was a non-issue as competition law is a niche area
- Independence: sufficiently separate as
Unlikely that the exercise of any disciplinary power by the President over the
Secretariat will influence the investigation they conduct.
The hearing by the GCC allowed everyone to have their case heard inter
partes
The ECJ had previously accepted a reference from a similar body Gabalfrisa
Reg 1/2003 allows for competition law bodies being given court powers
- It would promote judicial economy to make them a court/tribunal allows for uniformity
Necessary
Is a decision on the interpretation or validity of EU law "necessary" for the judgement?
CILFIT v Ministro della Sanit criteria:
1. A question of EU law is irrelevant to the outcome of the case; OR
2. Provision already interpreted by the ECJ (Da Costa); OR
3. The correct application of EU law is so obvious as to leave no scope for any
reasonable doubt (acte clair)
- Hypothetical question. ECJ looks at the linguistic nature of the question and the
purposive approach
Da Costa
ECJ can change its mind so even if the provision has already been interpreted one may
still make a reference (only do so if you think ECJ will change its mind)
Article 4(3) - binding on the court that made the reference. National courts must apply
the ruling in subsequent cases
General principles
Legislation
Non-retroactivity of legislation (can't back date claims) in the interest of legal certainty
and legitimate expectations - R v Kirk
Case law
Defrenne v Sabena
Rulings on interpretation of EU law is retrospective (can back date claims) unless there
are exceptional circumstances as there would be in the above case:
Exam Structure