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The Preliminary Rulings Procedure

- Article 267 TFEU


The purpose of the preliminary rulings procedure under Article 267 is to ensure
the uniform application and authority of ECJ rulings on the validity and
interpretation of EU law.

Article 267 allows MS to request the ECJ to give rulings on EU law issues

The procedure usually takes 18 months to 2 years

Any national court or tribunal can raise issues

Decisions of the ECJ are binding on all MS

It is not an appeals procedure

Routes to the CJEU


1. Direct actions against EU institutions

Article 263 - judicial review

e.g. MS apply to quash invalid Directive

e.g. Application by company to quash Competition Law decision fining it (Appeal


from General Court to ECJ)

Damages - Articles 268 and 340 allows for damages claims against institution by
individuals

2. Direct actions against Member States

Article 258 - action brought by Commission

Article 259 - action brought by another MS

Article 260 - imposition of fines on MSs

3. Enforcement of EU law by individuals

Individuals cannot sue MS or other individuals before the ECJ

Very limited circumstances for suing EU institutions

Therefore individuals must generally enforce their EU rights before national


courts, for example, by invoking direct effect

Limitations of the ECJ's jurisdiction


1. Can only interpret Treaty - not national law
Costa v ENEL

Italian court asked whether a specific provision of national law breached Treaty

ECJ: can't interpret national law but can interpret Treaty

ECJ rephrased question: "If there is a conflict between ANY national legislation
and the Treaty, which takes precedence?"

According to the doctrine of supremacy, the Treaty takes precedence

Italian Court must apply ECJ's interpretation to facts

2. Refusal to accept references


Foglia v Novello

There must be a genuine dispute

3. Insufficient information
Telemarsicabruzzo v Circostel

Insufficient information about the factual background to the case or relevant


provisions of national law

National Courts: The Power to Refer


Article 267 stipulates that "any court or tribunal" can make a reference

Meaning of "any court or tribunal"


ECJ's defintion is contain in Dorsch Consult Ingenieurgesellschaft which provided
relevant factors for consideration:

The body is establish by law

It is permanent

Its jusisdiction is compulsory

Its procedure is inter parties

It applies rules of law

It is independent - Syfait

Decisions are judicial in nature (binding)

Case law: court/tribunal?


Broekmeulen v Huisarts Registratie Commissie
Appeals Committee of Dutch medical profession wished to refer a question
Court/tribunal? Yes

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

let them make the reference. underlying argument


ECJs arguments
They used the same criteria as AG Jacobs Dorsch Consult
Held not a court or tribunal as:
- GCC was subject to the Minister of Developments supervision who could
review/overturn any decision that they reach. Undermines GCCs power
- GCC members had independence but there wasnt any safeguards from dismissal
- Operational link between GCC and Secretariat one starts and the other one finishes
it off
-Reference can only be made in proceedings that reach a judgement that is judicial in
nature. At any time the national authority can drop the case
Analysis
ECJ took too much of a formalistic view; the A-G is right in saying it would ensure
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)

Courts of Permissive and Mandatory Jurisdiction


Article 267(2) - Courts of permissive jurisdiction may refer
Article 267(3) - Courts of mandatory jurisdiction must refer
Mandatory Jurisdiction (MJ)
Costa v ENEL
MJs are courts whose judgement in the case in question is not subject to appeal.
Not necessarily the court of final instance. A court "against whose decision there is

no judicial remedy under national law"


Permissive Jurisdiction (PJ)
ECJ guidelines for exercising the discretion to refer:
i. Not bound by national precedent - Rheinmuhlen Dusseldorf
ii. May refer at any stage of the proceedings
iii. If national court is in doubt of the validity of secondary legislation they should refer
immediately - Foto-Frost
Permissive jurisdiction - approach of the UK courts:
Ex parte Else (CA) - Lord Bingham guidelines

Is a decision on EU law critical?

If yes, refer. Unless:

- national court can resolve issue with complete confidence


Trinity Mirror (CA) - guidelines
Only refer where the reference is appropriate:

Where question is of general importance

ECJ ruling is likely to promote uniformity throughout EU

Don't refer where the reference is inappropriate:

Where question is on a narrow point

Unlikely to have wider application

The diagram below illustrates the difference between courts of


permissive and mandatory jurisdiction:

Incorrect Failure to Refer by Court of Final Instance


Kobler v Austria
State liability claim possible - individual sues government in national court
Austrian final court decided not to make a Article 267 reference, incorrectly believing
that a previous ECJ ruling covered the case. ECJ held that a state liability claim is
possible, but the breach would only be "sufficiently serious" where the infringement
is "manifest in nature".
This decision could lead to the absurd situation where the High Court decides is the
Supreme Court has committed a sufficiently serious breach, or indeed, the Supreme
Court decided a claim against itself.

The Legal Effect of Rulings

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:

Exceptional consequences - huge number of backdated claims

The need for legal certainty (Sabena- legitimate expectations of employers)

Exam Structure