The Preliminary Rulings Procedure

- Article 267 TFEU The purpose of the preliminary rulings procedure under Article 267 is to ensure the uniform application and authority of ECJ rulings on the validity and interpretation of EU law.

Article 267 allows MS to request the ECJ to give rulings on EU law issues The procedure usually takes 18 months to 2 years Any national court or tribunal can raise issues Decisions of the ECJ are binding on all MS It is not an appeals procedure

Routes to the CJEU

1. Direct actions against EU institutions 

Article 263 - judicial review e.g. MS apply to quash invalid Directive e.g. Application by company to quash Competition Law decision fining it (Appeal

from General Court to ECJ) Damages - Articles 268 and 340 allows for damages claims against institution by

individuals

2. Direct actions against Member States

Article 258 - action brought by Commission Article 259 - action brought by another MS Article 260 - imposition of fines on MSs

3. Enforcement of EU law by individuals

Individuals cannot sue MS or other individuals before the ECJ Very limited circumstances for suing EU institutions  Therefore individuals must generally enforce their EU rights before national

courts, for example, by invoking direct effect

Limitations of the ECJ's jurisdiction1. Can only interpret Treaty - not national lawCosta v ENEL

Italian court asked whether a specific provision of national law breached Treaty ECJ: can't interpret national law but can interpret Treaty ECJ rephrased question: "If there is a conflict between ANY national legislation

and the Treaty, which takes precedence?" According to the doctrine of supremacy, the Treaty takes precedence Italian Court must apply ECJ's interpretation to facts

2. Refusal to accept referencesFoglia v Novello 

There must be a genuine dispute 

3. Insufficient informationTelemarsicabruzzo v Circostel

Insufficient information about the factual background to the case or relevant provisions of national law

National Courts: The Power to Refer

Article 267 stipulates that "any court or tribunal" can make a reference

Meaning of "any court or tribunal"ECJ's defintion is contain in Dorsch Consult Ingenieurgesellschaft which provided relevant factors for consideration:

The body is establish by law It is permanent Its jusisdiction is compulsory Its procedure is inter parties It applies rules of law It is independent - Syfait Decisions are judicial in nature (binding)

Case law: court/tribunal? Broekmeulen v Huisarts Registratie CommissieAppeals Committee of Dutch medical profession wished to refer a questionCourt/tribunal? YesReasoning? No other forum available, decisions binding, affect right to work under EU law

Nordsee v Reederei MondAn abritrator wished to refer a questionCourt/tribunal? NoReasoning? Decision to arbitrate was purely voluntary; jurisdiction not compulsory

Syfait

The Greek Competition Commission (GCC) wanted to refer a question to the ECJ - but it first had to be established that GCC fell within the meaning of court/tribunal.

A-G: YESECJ: NO

Hinged on independence factor from CILFIT

GSK accused of breaching Art 102 on competition law and the action was brought by the secretariat of the GCC: Sec v GSK.

Secretariats role of the GCC: to investigateGCC’s role: to adjudicatePresident of the GCC: also involved in supervising the Secretariat 

A-G Jacob's argumentsThought GSK satisfied Dorsch Consult criteria as;- The composition of the GCC panel: 2/9 members had to be legally qualified, 2 other posts for people with knowledge of competition law. Therefore majority non-lawyers. He thought this was a non-issue as competition law is a niche area- Independence: sufficiently separate as

Unlikely that the exercise of any disciplinary power by the President over the Secretariat will influence the investigation they conduct. 

The hearing by the GCC allowed everyone to have their case heard – inter partes

The ECJ had previously accepted a reference from a similar body – Gabalfrisa Reg 1/2003 allows for competition law bodies being given court powers

- It would promote judicial economy to make them a court/tribunal – allows for uniformity – let them make the reference. – underlying argument

ECJ’s arguments

They used the same criteria as AG Jacobs – Dorsch ConsultHeld not a court or tribunal as:

- GCC was subject to the Minister of Developments supervision – who could review/overturn any decision that they reach. Undermines GCC’s power- GCC members had independence but there wasn’t any safeguards from dismissal - Operational link between GCC and Secretariat – one starts and the other one finishes it off-Reference can only be made in proceedings that reach a judgement that is judicial in nature. At any time the national authority can drop the case 

Analysis

ECJ took too much of a formalistic view; the A-G is right in saying it would ensure uniformity

NecessaryIs a decision on the interpretation or validity of EU law "necessary" for the judgement?

CILFIT v Ministro della Sanità criteria:1. A question of EU law is irrelevant to the outcome of the case; OR2. Provision already interpreted by the ECJ (Da Costa); OR3. The correct application of EU law is so obvious as to leave no scope for any reasonable doubt (acte clair)

     - Hypothetical question. ECJ looks at the linguistic nature of the question and the purposive approach

Da Costa ECJ can change its mind so even if the provision has already been interpreted one may still make a reference (only do so if you think ECJ will change its mind)

Courts of Permissive and Mandatory Jurisdiction

Article 267(2) - Courts of permissive jurisdiction may refer

Article 267(3) - Courts of mandatory jurisdiction  must refer

Mandatory Jurisdiction (MJ)Costa v ENELMJs are courts whose judgement in the case in question is not subject to appeal. Not necessarily the court of final instance. A court "against whose decision there is no judicial remedy under national law"

Permissive Jurisdiction (PJ)ECJ guidelines for exercising the discretion to refer:

i. Not bound by national precedent - Rheinmuhlen Dusseldorfii. May refer at any stage of the proceedingsiii. If national court is in doubt of the validity of secondary legislation they should refer immediately - Foto-Frost 

Permissive jurisdiction - approach of the UK courts:

Ex parte Else (CA) - Lord Bingham guidelines

Is a decision on EU law critical? If yes, refer. Unless:

      - national court can resolve issue with complete confidence

Trinity Mirror (CA) - guidelinesOnly refer where the reference is appropriate:

Where question is of general importance ECJ ruling is likely to promote uniformity throughout EU

Don't refer where the reference is inappropriate:

Where question is on a narrow point Unlikely to have wider application

The diagram below illustrates the difference between courts of permissive and mandatory jurisdiction:

Incorrect Failure to Refer by Court of Final InstanceKobler v AustriaState liability claim possible - individual sues government in national court

Austrian final court decided not to make a Article 267 reference, incorrectly believing

that a previous ECJ ruling covered the case. ECJ held that a state liability claim is possible, but the breach would only be "sufficiently serious" where the infringement is "manifest in nature".

This decision could lead to the absurd situation where the High Court decides is the Supreme Court has committed a sufficiently serious breach, or indeed, the Supreme Court decided a claim against itself.

The Legal Effect of Rulings

Article 4(3) - binding on the court that made the reference. National courts must apply the ruling in subsequent cases

General principles

LegislationNon-retroactivity of legislation (can't back date claims) in the interest of legal certainty and legitimate expectations - R v Kirk

Case lawDefrenne v SabenaRulings on interpretation of EU law is retrospective (can back date claims) unless there are exceptional circumstances as there would be in the above case:

Exceptional consequences - huge number of backdated claims The need for legal certainty (Sabena- legitimate expectations of employers)

Exam Structure