2. PRELIMINARY REFERENCING IS;
• A procedure that enable national courts to refer queries to the court of Justice on
the interpretation or validity of EU law, specific to a case in their vicinity.
• Concerns how EU law should be interpreted.
• Attempts to promote active co-operation between the courts & to enforce a
uniform application of EU law.Add your third bullet point here
•A ruling can be made on the
how EU law is supposed to be
interpreted; in order for a
court to apply it correctly.
Interpretation
•A ruling on a the validity of a
secondary source of
legislationValidity
• A ruling for a preliminary reference is
done from one judge to another.
• It is codified by Article 267 of the Treaty
on the Functioning of the European
Union.
• 2 Different forms of procedure in
regards to Preliminary References.
3. ARTICLE 267.
Discretionary Reference Procedure
• Where such a question is raised before any court or
tribunal of a Member state,
• that court or tribunal may if it feels it is necessary to
benefit their decision making and judgement request the
Court of Justice give a matter on the aspect of EU law at
hand.
Mandatory Reference Procedure
• Where any such question is raised in a case pending
before a court,
• Where there is no judicial remedy for its decision (such as
a court of last instance,) that court or tribunal must bring
the issue regarding EU law to the Court of Justice.
• Or if the case is in regards of a person being held in
custody, the court of justice shall act with the minimum of
delay.
The court of justice of the European
Union shall have the jurisdiction to
give preliminary rulings concerning;
a)The interpretation of the treaties
b)The validity & interpretation of
acts of the institutions, bodies,
offices or agencies of the union.
4. INTERPRETATION OF THE TREATIES
• The ECJ simply interprets EU law.
• The national courts then use the law
as it was interpreted in their court
case.
• A preliminary reference is not an
appeal procedure >> It is triggered
during litigation and is PRELIMINARY.
• The national courts decide
questions of fact and national law,
whereas the court of justice
determines abstract questions of
interpretation.
• The application of the preliminary
ruling rests with the national courts.
Van Gend en LoosCase
•Preliminary reference procedure is to ensure uniform application &
interpretation of the Treaties by national courts.
Costa v ENELCase
•“The court of justice has no jurisdiction to apply a treaty to a specific case
or to decide upon a provision of a domestic law in relation to a treaty.”
•Cannot question the validity of domestic law.
•If it has to do so, it must reformulate the question or refuse the reference.
Foto-Frost v HCase
•A national court is also unable to declare an Act or Treaty of the EU as
invalid.
5. JUDICIAL INTERPRETATION
Methods of Judicial
Interpretation:
• Literal; The ordinary dictionary meaning is
taken to be what the legislators wanted to
convey. This method is popular in England but
the ECJ tend to avoid it due to difficulties with
translations and imprecise or obscure provisions.
• Contextual; The whole concept of EU
law is examined as a whole. This is generally used
to help understand why the provision is there in
the first place.
• Purposive; Legislation is interpreted in
such a way that most furthers the purposes of the
union. This happens in EU law due to the
“preamble” before legislation which sets out the
aims and objectives of the legislation itself.
How a reference regarding
interpretation arises:
•A dispute or conflict of opinions arises in
national courts regarding the interpretation of
a piece of EU law.
•A request is made for clarification on how the
disputed provision should be interpreted.
•The case is suspended pending the ruling of
the Court of Justice on the disputed provision.
•Once ruling is given, the case is continued
using the interpretation of the provision they
have been given by the Court of Justice.
The European Court of
Justice tends to interpret
legislation using both
Contextual and Purposive
techniques.
6. ROLE OF THE EUROPEAN COURT OF
JUSTICE
ECJ
Reactive
Proactive
Unasked
questions
Supposed to react & respond to the questions it has been
asked by the national courts.
Occassionally the ECJ will use a proactive approach in order to
reformulate a query to make the interpretation more beneficial.
Rarely will the court answer an unasked question, but it will do so if
they feel it will assist the national courts judgement.
Marks & Spencers v Customs:
• Court of appeal raised a question relating to Directive 77/338
• Question was based on a mistaken premise regarding direct
effect.
• Court of Justice rephrased the question in order for the
national court to benefit more from a better understanding
and interpretation of the law.
7. CHALLENGING THE VALIDITY
R(TOBACCO) V SECRETARY
• Directive had been adopted by council on basis of
Article 114
• (regarding the functioning of the internal market.)
• & Article 207; common commercial policy.
• Directive aims were to regulate cigarette
manufacturers via, nicotine/tar content, warnings on
labels etc.
• Judicial review was sought in regards of whether or
not the directive should be transcribed into national
law.
• Several grounds for belief of invalidity; inappropriate
legislative base being one of them.
• It was referred to the ECJ for a ruling on validity; it
was held to be a valid directive as Article 114 was
the correct legislative base.
• Article 207 should not have been used, but did not
affect validity.
• The court of justice cannot rule on the
validity of the treaties.
• Only secondary legislation can be
challenged.
• National courts can personally decide
that EU law as being valid and decide
to not refer but it cannot take the
court of justices authority and declare
it invalid.
Inadmissable references;
• Very rare for ECJ to refuse a request. (bound to answer if
it is in regards of interpretation!!)
• It will do so on a number of grounds however.
• Contrived dispute~Union law does not actually apply to
case
• Irrelevant~ Provisions of EU law are incidental to the case
• Insufficient Evidence~ of factual or legal basis.
8. MEANING OF COURT OR TRIBUNAL.
Broekmeulan
Case
A Doctors registration to gain GP status
was refused.
He appealed to the hospitals appeal
committee based on EU law provisions.
The Appeals committee was given the
status of a court or tribunal as its verdict
was final, public authorities approve of
its duties & decisions could not be
contended.
Functional
Test!
Nordsee
Case
An independent Arbitrator
was not held to be a court as
they lacked compulsory
jurisdiction.
Their rulings were not binding.
Procura della
Republica v X
The Italian Public Prosecutor
could not refer questions to the
Court of Justice as he did not
constitute as a court or tribunal.
He only played a functional
role within the system.
• There are limitations on who can request a ruling.
• There is a wide interpretation in regards of what
constitutes as a Court or Tribunal.
• More bodies via the functional test can be
considered as Courts or Tribunals in regards of
267 references.
Dorsch Consult Case
• Established the functional test
that should be applied when
determining whether or not a
body is a court or tribunal.
• Factors to be considered;
Is the body established by law?
Is it permanent?
Is its jurisdiction compulsory?
Is its procedures inter partes?
Does it apply rules of law?
Is it independent?
9. ADVANTAGES
OF FUNCTIONAL
APPROACH.
Gabalfrisa
•Reference made from the regional economic/admin court of Catalonia.
•Was court independent from the Tax Authority whose decisions it reviewed?
•Spanish law ensures a separation of functions between the two,
•Receives no instructions from the Tax Authority… WAS A COURT/TRIBUNAL.
Schmid
•Reference from Appeal chamber of Regional Finance Authority Vienna.
•Inadmissible; lacked independence due to 2 out of 5 members of chamber also
members of the tax authority
•Also president of tax authority was president of chambers. No separation of
functions.
Wilson
•Independence linked with impartiality; authority acts as a 3rd party in relation to the
authority which adopted the decision.
•External aspects; protected from external pressures >> removal of office, civil lawsuits,
etc.
•Internal aspects; impartiality, level playing field, lack of interest regarding outcome.
•Needed for independence to be seen.
• A lot more bodies can now seek
references even if they are not
a court or tribunal.
• This allows more rulings on
different areas of EU law,
clarifying ambiguous provisions
that may have not been
reached without the functional
test.
• Reduces appeals based on EU
fro occurring, law already
clarified.
INDEPENDENCE:
• Is a requirement under the functional test for a body
to invoke Article 267.
• Body needs to be free from under influence/pressure.
• Can be difficult to establish this…
10. DISCRETIONARY REFERENCE PROCEDURE
• Decision on whether or not to refer to the ECJ is left to the national court.
• Usually a party will have attempted to rely on a EU law provision.
• Reference however can be issued of its own volition if it feels it will help.
• Case still has to be proceeding in court.
• Post-case= too late.
• Discretionary.
• Only need to seek reference when they feel it is necessary to give judgment.
• ^ matter of opinion.
MANDATORY REFERENCE PROCEDURE
• Courts or tribunals whose decisions are final and without judicial remedy, “shall,” make a
reference, if provision relates to EU law.
Costa v ENEL:
• Request came from an Italian Magistrates court.
• No appeal from their decision would have been possible.
• This was due to the small amount of money the case involved.
• “national courts against whose decision, as in the present case,
there is no judicial remedy must refer the matter to the Court of
Justice.”
11. HYPOTHETICAL QUESTIONS.
• Although there is an obligation for the supreme courts to make references to
the ECJ when a question is raised that does not mean they have to seek rulings
if question is irrelevant to the case.
• Hypothetical questions are irrelevant questions.
CILFIT;
“National courts or tribunals are not obliged to
refer to the Court of Justice a question
concerning the interpretation of union law
raised before them if the question is not
relevant but if to say the answer to that
question, can in no way affect the outcome.”
12. PREVIOUS RULINGS.
• A national court of law of last resort does not need to make a preliminary reference if that
point of law has already been previously clarified.
“The authority of an
interpretation…already given by
the court may deprive the
obligation this purpose & not
empty it of its substance. Such is
the case especially when the
question is materially identical
with the already answered
question.”
Da Costa
case; 1963
13. ACTE CLAIR (CLEAR ACT)
• This doctrine is concerned
when a provision is so obvious
that to invoke Article 267
would be a waste of time and
resources.
• It entitles a court of last resort
to not invoke Article 267
• However it must be used with
caution as it is possible for
discrepancies with
interpretation to occur.
• They have to deliberate
whether they are in actual
fact entirely sure about the
provisions purpose.
CILFIT case:
• “The correct application of Union law may be so obvious as to
leave no scope for any reasonable doubt as to the manner in
which the question raised is to be resolved.”
• “In the light of the specific characteristics of Community law, the
particular difficulties to which its interpretation gives risk, and the
risk of divergences in judicial application via decisions in the EU.”
InterModal Transports case:
• There were no obligations to refer as it was held that the tariff
proceedings provisions were so clearly worded and expressed that
the court was correct to consider that there were no reasonable
doubt as to how it were to be interpreted.
