Chapter 13
PRELIMINARY RULINGS: ARTICLE 267 TFEU
1. What matters can be referred by national courts to the ECJ under Article 267 TFEU for a preliminary ruling?
a. Matters concerning the validity of primary sources of EU law.
b. Matters concerning the interpretation of the Treaties and the interpretation and validity of acts adopted by EU institutions.
c. Matters concerning the validity of judgments of the ECJ.
a. This is an incorrect answer. The validity of primary sources of EU law, being a matter of a constitutional nature, cannot be determined by the ECJ.
b. This is the correct answer. Article 267 TFEU states that the ECJ has jurisdiction to give preliminary rulings on the interpretation of the Treaties and on the validity and interpretation of acts adopted by EU institutions;
c. This is an incorrect answer. In Case 69/85 Wünsche, the ECJ clearly stated that it will not give a preliminary ruling on the validity of its judgments. The ECJ’s judgments are final.
2. Why was the request for a preliminary ruling refused by the ECJ in Case 104/79 Foglia v Novello?
a. The request was made outside the time limit for a reference to be made.
b. There was no genuine dispute between the parties.
c. Proceedings before the national referring court had already been terminated.
a. This is an incorrect answer. There is no prescribed time limit. A reference is made as part of national proceedings. Therefore, as long as the national time limits are met and no final judgment has been delivered a reference can be made by the national court as part of its proceedings.
b. This is the correct answer. In the Foglia case, both parties to national proceedings had the same interest in the outcome of the dispute. This was to obtain a ruling on the invalidity or otherwise of the French legislation, since under their contracts they were not liable to pay for any unlawful charges imposed by France. Their action was a collusive and artificial device aimed at obtaining a ruling and not a genuine dispute which the ECJ could decide. However, it seems that the requirement of the existence of a genuine dispute between the parties to national proceedings has been overruled by subsequent cases.
c. This is an incorrect answer. In the Foglia Case, the proceedings before the national court had not been terminated at the time of referral. However, in Case C-159/90 Society for Unborn Children (Ireland) v Grogan, the ECJ refused to accept a reference on the ground that proceedings before the referring court had already been terminated.
3. What is the meaning of the doctrine of ‘acte clair’ in the context of Article 267(3) TFEU?
a. The term means that the Commission must bring proceedings before the ECJ against a Member State when it is clear that a Member State has breached EU law.
b. The doctrine means that Article 267 (3) TFEU imposes an obligation upon the courts of last instance to ask for a preliminary ruling each time the interpretation of EU law is at issue.
c. The doctrine means that Article 267 (3) TFEU imposes no obligation upon the courts of last instance to ask for a preliminary ruling when the correct application of EU law is so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised should be resolved.
a. This is an incorrect answer. The Commission may, under Article 258 TFEU, bring proceedings against a Member State for failure of that State to fulfil an obligation imposed by EU law, but this does not involve the application of the doctrine of acte clair.
b. This is an incorrect answer. The obligation imposed by Article 267(3) TFEU upon the courts of last instance to ask for a preliminary ruling each time the interpretation of EU law is at issue is subject to three exceptions. Accordingly, it is not necessary for the courts of last instance to refer if:
-first, the ECJ has already interpreted the same question in an earlier case (Joined Cases 28-30/62 Da Costa);
-second, the question has no relevance to the dispute at issue (Case 83/78 Pigs Marketing Board);
-third, the application of EU law is so obvious as to leave no scope for reasonable doubt. This is known as the doctrine of acte clair (Case 283/81 CILFIT).
c. This is the correct answer. However, the doctrine of acte clair requires that before a court of last instance comes to the conclusion that the application of EU law is so obvious as to leave no scope for reasonable doubt, that national court or tribunal must be convinced that the matter is equally obvious to the courts of the other Member States and to the ECJ.
4. What did the judgment in Case C-224/01 Köbler v Austria establish?
a. That the Member State may be liable to be fined if an incomplete documentation file is sent to the ECJ when a national court makes a request for a preliminary ruling under Article 267 TFEU.
b. That the Member State may be subject to a fine if the question referred to the ECJ is hypothetical.
c. That the Member State may be liable for failure of its court of final instance to refer a case to the ECJ.
a. This is an incorrect answer. If the ECJ feels that there are some gaps ‘in the file’ sent by the national court it can either return the request to the national court asking for fuller details or it can proceed with the information that it has.
b. This is an incorrect answer. No fine will be imposed on a Member State is the referred question is vague or hypothetical. However, the ECJ will refuse to answer hypothetical questions.
c. This is the correct answer. If the failure is sufficiently serious to satisfy the rules on State liability then an individual may have a claim against the Member State concerned. Also, the Commission may bring proceedings against the Member State concerned under Article 258 TFEU.
5. What did the judgment in Case 314/85 Foto-Frost specify regarding the referral concerning validity of EU acts?
a. Any national court can declare an EU act invalid by applying the tests developed by the ECJ.
b. National courts have no power to declare an EU act invalid.
c. Only the highest national courts can declare an EU act invalid.
a. This is an incorrect answer. The ECJ has the exclusive jurisdiction to declare an EU act invalid because of the consequences of such a judgment for all Member States and the requirements of the principle of legal certainty.
b. This is the correct answer. National courts can declare an EU act valid but cannot declare such an act invalid. The ECJ has the exclusive jurisdiction to declare an EU invalid.
c. This is an incorrect answer.