Article 267

(ex Article 234 TEC)

The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings
concerning:
(a) the interpretation of the Treaties;
(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the
Union;
(2) Where such a question is raised before any court or tribunal of a Member State, that court
or tribunal may, if it considers that a decision on the question is necessary to enable it to give
judgment, request the Court to give a ruling thereon.
(3) Where any such question is raised in a case pending before a court or tribunal of a
Member State against whose decisions there is no judicial remedy under national law, that
court or tribunal shall bring the matter before the Court.
If such a question is raised in a case pending before a court or tribunal of a Member State
with regard to a person in custody, the Court of Justice of the European Union shall act with
the minimum of delay.
Notes
The purpose of ruling

Article 267 gives ECJ the power to give preliminary ruling on how the treaty
article can be interpreted treaties and acts of institutions.
Art 267 does not give the court the power to decide the outcome of the EU
law but rather the power to interpreted EU. Arsenal v Reed 2003
The ECJ may say that its ruling has temporal effect- its effective from the day
it is made. Barber v Guardian Royal Exchange
Art 267 is to uniform interpretation (unity principle) and application of EU law.
It is left to the national court to interpret the law.
Can take up to 2 years so is it necessary
the purpose of preliminary ruling system is to prevent a body of case law not
in accord with the ruling of Community law from coming into existence in any
MS Hoffman LaRoche v Centraform

The effect of ruling

ECJ isnt bound by its precedence but does so to promote consistency (Da
Costa and Van Gend)
A referring national court will be bound by ECJs ruling

ECJ aint senior to national court but enjoys the supremacy (Karen Davis)

Which national body can make a reference

The ECJ accepts decision from anybody within the legal system of the MS
(Van Gend decision was from Dutch Administrational tribunal) but doesnt
accept decision from a body thats outside the MS Legal system. (Nordsee
where the arbitration was refused because it was made by a contract)
(Broekmeulen Appeal committee for General Medication got heard because it
operated with consent and co-operation of the public authority and its
decisions were binding on law

The Decision to refer

Its the job of the National Court to decide when the reference should be made
not the job of the parties or other authorities. National precedence should
never be used to prevent the court from seeking a ruling- RheinmuhlenDusseldorf
The two types of referrals:
o The discretion to refer:
o may, if it considers that a decision on the question is necessary to enable it to
give judgment, request the Court to give a ruling thereon.
This means that when the appropriate body has been called
upon to make a decision based on the laws of EU then it can
refer to the ECJ for a ruling however it is not bound
(Simmenthal)
o The obligation to refer:
o Any such [body] whose decisions there is no judicial remedy under
national lawshall bring the matter before the Court
This means any court from which there is not appeal from:
In abstract theory- only courts where no appeals where available
(Lord Denning in Bulmer v Bollinger 1974- only HOL or SUP
court now)
In Concrete theory MS courts from whose decision the parties
would have no automatic right of appeal. This theory ismore
persuasive as it is support by ECF in Costa v ENEL
However in the Swedish case Lyckeskog it appears now that the
abstract theory is more in line now
o Three circumstances when a reference may not be necessary:
The question of EU is not relevant to the case
The question of EU law has already been interpreted in previous
ruling (Da Costa)

The correct interpretation is so obvious as to leave no scope for

reasonable doubt. (Criticism- what is obvious to one MS isnt to
another)
Where a National Court is under an obligation to refer but does not then it
may be held to liable for damages (Kobler v Austria)

The ECJ can deny a ruling where:

The ruling is asked by authority outside MS legal jurisdiction ie fabrcated by

the parties Foglia v Novello or hypothetical question Meilicke
Where trhe proceeding in the National courts have been terminated-Pardini

The referral Procedure

Where a decision to refer has been reached the National Court may refer or
formulate a question. NB where the question has been inappropriately
formulated the ECJ is willing to reformulate the question so it is of more
assistance to the National Court but this reformulation procedure is declining
due to the amount of work done by ECJ
The national court must stay proceedings until the ECJ have got back to
them-prescribe any interim measure
The process:
1. The question is transferred into the official language of the union
2. Notified to the MS and EU institutions
3. Noted in the Official Journal
4. Written observations will be accepted by Parties, Member States and
Institutions
5. A brief opportunity for oral submission- done in the official language of
the National court submitting the question
6. The court will receive the opinion of the Advocate General
7. A judgement will be produced by majority vote
8. The decision is published and returned to the National Court
NB ECJ is only interpreting the EU law not deciding

The result of the preliminary ruling

Advantage of preliminary references is that it has allowed a link to develop

between the ECJ and national court and it gives the National Court the
advantage to familiarise themselves with EU law
It is important to note the way in which the courts have used this system to
develop the EU legal system
In conjunction to Art 10 of TEC (now incorporated in Art 4 of TEU) it has
further extended the scope and effectiveness of the legal orders such as
interpretive obligation (Von Colson) and state damages(Francovich)