Lecture 18.11.2011
Preliminary rulings Article 267 TFEU – Part II
Article 267 TFEU
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;
Where such a question is raised before any court of 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 judgement, request the Court to give a ruling thereon.
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.
The nature of Article 267 TFEU
- Article 267 reference = a vehicle in which to develop important EU law concepts
o Supremacy, direct effect, State liability...
- Relationship between ECJ and national courts is one of co-operation not hierarchy
- Article 267 reference is not an appeal
o NB: Article 4(3) TEU on loyal co-operation
- Article 267 ensures that EU law is applied uniformly by national courts
- Bingham J in Customs & Excise and Samex [1983] 1 All ER 1042:
o Panoramic view of the Community and its institutions
o Detailed knowledge of the Treaties and much subordinate legislation
o Intimate familiarity with the functioning of the Common market
o Can receive submissions from other Community institutions
o Other Member States can intervene
o Multi-national court in a position to be able to carry out comparisons between the different language versions of the text
Questions
- What is the purpose of a reference?
- Who makes the reference to the ECJ?
- What can be referred to the ECJ?
- What are the effects of the ECJ’s rulings?
Purpose
- The nature of the ruling is, in no sense, appellate; rather it is advisory
- National court or tribunal is obliged to accept the interpretation of the EU law handed down by the ECJ. Case 29/68 Milchkontor [1969]
- To ensure the uniform application of EU law in the courts and tribunals of all Member States
Who makes the reference?
- References from “a court or tribunal”
- It is a question of EU law whether a body is a “court or tribunal”
o Case C-24/92 Corbiau v Administration des Contributions [1993]: only authorities acting as a third party in relation to the authority which adopted the decision under appeal
- Case C-393/92 Almelo [1994]:
o Established by law
o Have a permanent existence
o Exercise binding jurisdiction
o Be bound by rules of adversary (inter partes) procedure
o Apply the rule of law
o Be independent
Cases 246/80. Broekmeulen [1981], case 102/81, Nordsee [1982] and case 516/99. Walter Schmid [2002]; Standesamt Stadt Niebull [2006]
- Article 267 distinguishes between courts that “may” refer and courts that “shall” refer:
o Article 267(2): discretion to refer
o Article 267(3): duty to refer
Article 267, 2nd paragraph:
“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 judgement, request the Court to give a ruling thereon.”
- Case 166/73 Rheinmuehlen [1974]:
o “... national courts have the widest discretion in referring matters to the Court of Justice if they consider that a case pending before them raises questions involving interpretation, or consideration of the validity, of provisions of Community law, necessitating a decision on their part.”
- Courts ask questions “ if they consider that a case pending before them raises questions involving interpretation.”
- A national legislation or procedure making a reference difficult or impossible is contrary to EU law
- The treaty seems to grant the same degree of discretion to national courts whether the question is one of interpretation or one of validity of EU law
- However, the ECJ has ruled that national courts have no power to declare a Community act invalid
o Case 314/85 Foto-Frost [1987]
- Article 267, 3rd paragraph:
- “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 of Justice.”
- The national court against whose decisions there is no judicial remedy under national law is required to make a reference
- What is the court of last resort?
o Abstract theory: the court whose decisions are never subject to appeal
o Concrete theory: the court whose decision in the case in question is not subject to appeal
o Case 6/64 Costa v ENEL [1964]: highest court in the case (concrete theory)
- Obligation seems to be automatic
- However, the ECJ has introduced some flexibility:
o The question is irrelevant
§ Caser 283/81 Cilfit [1982]
o The question has already been interpreted by the Court (“Acte éclairé”)
§ Cases 28-30/62 Da Costa [1963]
o The “Acte clair” theory
§ Case 283/81 Cilfit [1982]
“Acte clair theory”
- Case 283/81 Cilfit [1982]:
o “... a court or tribunal against whose decisions there is no judicial remedy under national law is required... to comply with its obligations to bring the matter before the Court, unless... it has established that... the correct application is so obvious as to leave no scope for any reasonable doubt. The existence of such possibility must be assessed in light of the specific characters of Community law, the particular difficulties to which its interpretation gives rise and the risk of divergence in judicial decisions within the Community.”
Who makes the reference?
- What could be done in the absence of a reference which would have been necessary to decide the case?
o Direct action by the Commission: articles 258-260 TFEU
o Damages against the State for breach of Community law: Koebler [2003]
o Should we set up an appeal mechanism?
What can be referred?
Article 267, 1st paragraph:
“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.
- Interpretation of the Treaty:
o Several examples during this course, thwarting with Case 25/62 Van Gend en Loos [1963]
- Validity and interpretation of acts adopted by the EC institutions:
o That includes legally and non legally binding acts
- Interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide
o Instrument which governs the operation of a particular institution
- The Court will reply to a question of interpretation of its own judgments
- The case referred must concern a matter of EU law over which the Court has jurisdiction
- If a question is referred about national law matter only, the Court will decline jurisdiction
o Case 6/64 Costa v ENEL [1964]
- However, see C-28/95 Leur-Bloem [1997]
- The question must relate to a genuine dispute between the parties:
o Case 244/80 Foglia v Novello (II) [1981]
- The question must be relevant:
o C-343/90 Dias [1992]
- The question must be accompanied by adequate legal and factual information:
o C-320-322/90 Telemarsicabruzzo [1993]
What are the effects of the ECJ’s rulings?
Interpretation
- The preliminary ruling is binding on the national court which made the reference
o C-369/89 Piageme [1991]
- Other national courts are entitled to treat the Court’s ruling as authoritative, giving them the possibility of not have to refer again
o Cases 28-30/62 Da Costa [1963]
Validity
- Case 66/80 International Chemical Corporation v Amministrazione delle Finanze dello Stato [1981]
o “Although a judgment of the Court given under Article [267] of the Treaty declaring an act of an institution... to be void is directly addressed to the national court which brought the matter before the Court, it is sufficient reason for any other national court to regard that act as void for the purposes of the judgment which it has to give”
Summary
- Consultation procedure, not an appeal
- 26792) TFEU ‘may’, 267(3) TFEU ‘shall’
- Duty to refer is not absolute, 3 CILFIT principles duty to refer can be sidestepped.