“The preliminary reference system contained in Article 267 TFEU has been used by the European Court of Justice to establish a judicial hierarchy with itself at the peak.”

With reference to decided cases, critically assess the validity of this statement.

Introduction

The Court of Justice of the European Union (CJ) has jurisdiction to give preliminary rulings on the interpretation of the Treaties and the validity and interpretation of the acts of the institutions or other bodies or agencies of the union. It may be argued when examining relevant case law both for and against the notion that Article 267 has established a form of judicial hierarchy with the European Court of justice at the top. Equally however, it may be argued conversely that the reference procedure is a more collaborative flatter process aimed at creating a more uniform and consistent approach to interpretation and application of EU law across member states. The issue of the relationship between national courts and the CJ is central to the question of whether it is a relationship of equal parties working in a cooperative or collaborative way or more akin to a hierarchical structure. Examining and analysing the leading cases as well as a selection of articles on this subject may give an insight into the application of the Article 267 procedure and discourse, to test the hypothesis.

What is the purpose of Article 267 TFEU?

Article 267 in concerned to ensure there is a uniform interpretation and application of EU law. National courts and tribunals may be faced with a question of EU law which needs clarification and determination to resolve a dispute before it. They can then suspend proceedings and make a `reference’ to the CJ to obtain a `preliminary ruling’ on any point of law pertaining to the proceedings. The case is remitted back to the national court after the CJ has expressed its view or opinion, for a final ruling based on the legal opinion received back. The important point worth noting at this initial look at the rationale behind the procedure is that the CJ has no power to make any final orders or enforce judgments in the national courts of member states – this is a matter for the national court.

Advocate-General Lagrange in De Geus en Uitdenbogerd v Robert Bosch Gmbh (case 13/61) the first case to reach the CJ through the application of the preliminary rulings procedure said:-

“Applied judiciously – one is tempted to say loyally – the provisions of [Article 267] must lead to a real and fruitful collaboration between the municipal courts and the Court of Justice of the Communities with mutual regard for their respective jurisdiction” [i]

Rheinmühlen-Düsseldorf v Einfuhr- und Vorratsstelle für Getreide und Futtermittel (Case 166/73) also discussed the issue of legal integration and preservation of the uniform character of EU law throughout Member States stating:-

“Article 177 EEC [267 TFEU] is essential for the preservation of the Community [now Union] character of the law established by the Treaty [now Treaties] and has the object of ensuring that in all circumstances the law is the same in all States of the Community [Union]”[ii]

How does it work?

Article 267 TFEU provides that -

“The Court of Justice 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 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.

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.” [iii]

What is a `court or tribunal’ within Article 267?

The CJ has jurisdiction to rule on the interpretation or validity of EU law apart from certain areas of national law such as foreign policy and national security.

In Broeckmeulen v Huisarts Registratie Commissie (Case 246/80) [1981] ECR 2311 Broeckmeulen was refused registration as a medical general practitioner in the Netherlands, despite holding a Belgian medical qualification. He sought to rely on [EU] rules on the free movement of professionals before the appeals Committee of the Dutch medical professional body. On a preliminary reference from that committee, the first question for the Court of Justice was whether the committee was a ‘court or tribunal’. The Court responded that, in the absence of a right of appeal to the ordinary courts, the Appeals Committee was a ‘court or tribunal’ since it operated with the consent and cooperation of the public authorities and delivered final decisions following an adversarial procedure.

Also in Dorsch Consult Ingenieurgesellschaft v Bundesbaugesellschaft Berlin (Case C-54/96) provided more guidance on the scope of the meaning of what is a ‘court or tribunal’ for the purposes of Article 267 proceedings. A number of factors are taken into account, whether the body is established by law, is permanent, whether its procedure is inter partes, whether it applies rules of law and is independent, and whether its jurisdiction is compulsory. The court over the years has accepted references from a wide range of bodies, including administrative tribunals, professional disciplinary bodies, tax adjudicators, and insurance officers.

Issues of jurisdiction of national courts to refer

Article 267 does draw a distinction between an obligation to refer (Art 263 (3)) and the discretion to refer (Art 267 (2). There have been some key cases in this area.

In Bulmer v Bollinger (1974) Lord Denning in the Court of Appeal felt that a reference was only necessary if it was `conclusive’ to the judgment and in certain factual situations, although R v International Stock Exchange of the UK and the Republic of Ireland, ex parte Else (1993) in the Court of Appeal stated, there now seems to be a presumption in favour of a referral to the CJ on points of EU law. In Da Costa en Schaake NV v Nederlandse Belastingadministratie (Cases 28–30/62) [1963] ECR 31 stated that very question of interpretation of community law should be raised before them ` unreservedly’ by national courts of last resort. CILFIT Srl v Ministero della Sanita (Case 283/81) [1982] ECR 3415 a case involving a challenge to the Italian wool levy under Regulation 827/68 under Art 267 (3) established that issues of national law did not need to be referred to the CJ, nor where the CJ had already ruled on the point.

Courts or tribunals that do not come within the mandatory obligation under Art 267 (3) have an unfettered discretion under Art 267 (2) when it comes to referrals. National courts have no authority to declare EU laws invalid (Foto-Frost v Hauptzollamt Lubeck-Ost (case 314/85) and any case involving the validity of any aspect of EU law must be referred. The earlier approach in the English courts taken in cases like Bulmer are less likely to be followed. In Dzodzi v Belgium (Cases C-297/88 & C-197/89) a case although seeking an interpretation of Belgium law, was seeking advice or guidance on associated Belgium national law, and the questions submitted for referral were not seen as relevant as this was for the national courts to determine. The national courts will discuss the relevance of EU law applied to a given case , and the issue of whether EU is clear (acte clair) and if it may avoid a reference to the CJ. However, the CJ may be much better equipped to deal with the complexities of the interpretation of EU law and in particular diversity of language involved and overview of EU law and its institutions. In R v Stock Exchange, ex parte Else (1982) Ltd [1993] Sir Thomas Bingham MR referred to the advantages of the Court of Justice in interpreting [EU] law, declaring that ‘if the national court has any real doubt, it should ordinarily refer’.

Some other key case law developments

In Costa v Enel (case 6/64) the court confirmed that the role of the CJ is to rule on matters of EU law but has no jurisdiction to interpret domestic law by stating that:-

“a decision should be given by the court not upon the validity of an Italian law in relation to the Treaty, but only upon the interpretation of the above mentioned [Treaty] Articles in the context of the points of law stated by Gludice Conciliatore.”[iv]

Costa also established that in national courts where there is no judicial remedy against their decisions, they must refer the matter to the Court of Justice’ based on the `concrete’ theory of justice and actual appeal mechanisms. Applying the `abstract’ theory to court appellant systems makes it difficult to determine final courts of appeal. In Chiron Corporation v Murex Diagnostics [1995] All ER (EC) 88 – Court of Appeal argued it was not a court of last resort when it refused a right of appeal to the House of Lords.

The issue of interpretation and application of 267 TFEU and jurisdiction of the court when it comes to any ruling on the facts of a case in a domestic court following a reference from a national court or tribunal, has been subject to case law. In CEPSA Estaciones de Servico SA v LA Tobar e Hijos SL; C-279/06 [2008] ECR I-6681) it was stated that the CJ “has no jurisdiction to give a ruling on the facts in the main proceedings or to apply the rules of [EU] law which it has interpreted to national measures or situations, since those questions are matters for the exclusive jurisdiction of the national court or tribunal”. [v]

In the case of Foglia and Novello (No 1) (Case 104/79) and Foglia v Novello (No 2) (Case 244/80) the CJ declined to hear cases brought in these artificial proceedings where the parties were seeking to challenge French import duties and French law in this area. The CJ ruled that the function of Article 267 was to contribute to the administration of justice in the Member States, not give advisory opinions on general or hypothetical questions. Steiner & Woods[vi] point out that this case has been criticised as even though their claim had been contrived, they did genuinely think the duty was in breach of EU law, and the Italian judge asked to decide the case was faced with a genuine problem linked to the issue of EU law. The case though is good law and would be applied in similar circumstances.

The CJ will not interfere with matters that should fall within the discretion of the national court. In Telemarsicabruzzo SpA v Circostel (cases C-320,321 322/90) the CJ rejected an application for a ruling from an Italian magistrate’s court on the grounds that the reference had provided no factual background information and only a cursory outlines of the case.

These cases above give a snapshot of the jurisprudence and approach of the CJ in some areas of application of the preliminary reference procedure.

In conclusion

The reference procedure itself began more in the vein of a horizontal system based on cooperation between national courts and the CJ but it could be argued it has taken on a more vertical shape with the CJ holding a position of superiority over national courts. Preliminary rulings have been an effective way of developing EU law across member states’ judicial systems and maintaining conformity in the application of community law. Important concepts such as direct effect and supremacy of EU have been established through the procedure and applied to major cases such as Van Gend en Loos (case 26/62) and Costa v ENEL (case 6/64) as well as Defrenne v Sabena (No.2) (case 43/75. It can be argued that also that Da Costa and CILFIT have contributed to the growth of precedents along with the binding effect of preliminary rulings. Together this has brought a change to the relationship between the national court and the CJ. The preliminary ruling procedure is important in maintaining uniformity in the union and a coherent development of legal principles throughout the EU member states. Panke’s [vii]study of Germany and UK adaption to EU judicial mechanisms, discusses national politically sensitivities and “sovereignty concerns” that may erect certain barriers in applying community law, but in the end compliance was eventually achieved (possibly through different mechanisms). The preliminary ruling procedure has been described as providing a platform for the CJ to deliver seminal constitutional decisions that define the relationship between the EU and member states.[viii] Steiner and Woods acknowledge in their conclusions on the preliminary rulings procedure drawing on cases such as CILFIT and Foglia v Novello (No 2) (case 244/80) [1981] ECR, that the CJ is positioning itself not as an equal partner in a horizontally structured relationship but instead more akin to a superior court – even a supreme court for the EU. This would place it in a more dominant position developing EU law and creating a judiciary hierarchy with itself at the top rather than merely a servant of national courts. The influence and authority wielded by the CJ through the preliminary rulings procedure may support that analysis, rather than the more passive advisory role merely ensuring uniformity and coherence in the application of community law across member states.

[i] Steiner & Woods – EU law 11th ed (2009) – P.217