#14637 - Preliminary Reference Procedure - GDL EU Law

_______________________________________________________

Treaty Basis

Art 267 TFEU

Jurisdiction of the CoJ to give preliminary rulings regarding:

• Interpretation of treaties

• Validity/interpretation of secondary legislation

Lower courts may give preliminary reference; courts of last instance must give preliminary reference

Simmenthal

(See ‘Supremacy’ doc – authority on setting aside national laws)

Prelim ref in non-adversarial procedures (allowed but warned of the potential threat to the rule of law in this regard) – question setting aside national law that only the constitutional court would be able to do – could this be done by the lower court purely on the authority of the CoJ’s preliminary ruling?

Held: yes it could – clarified prelim rulings are for the interpretation of EU – it is for the national court to enter into a factual interpretation

Scope of Prelim Ref

Drodzi v Belgium: the wording of Art 267 does not preclude a reference to the CoJ if it is MS national law that is in question

• “since [Art 267 TFEU] is designed to ensure uniform interpretation in all MS of the provisions of Community law, the Court merely deduces from the letter and the spirit of those provisions trhe meaning of the Community rules at issue”

Held: in this case it was not a genuine reference

Leur-Bloom: a reference may only be where national legislation is aimed at the same purpose of EU law

Total Belgium NV: prelim ref for interpretation of directive (to defend the objective of that directive being uniformly implemented)

HOWEVER not unlimited scope:

• Art 275 TFEU no jurisdiction over CFSP

• Art 276 TFEU no jurisdiction over acts of police/security forces

Definition of ‘court’

Dorsch Consult found that the features of a court include the fact it is established by law; permanent; has a compulsory jurisdiction; rules of law; independent i.e. the label ‘court’ is irrelevant – its status it determined by EU law

Nordsee: arbitrator interpreting a contract could not be considered a ‘court’ as there was no public element

Courts with discretion to refer

Rheinmuehlen: inferior courts will not be prevented from making a reference because they are bound by the superiority of another national court

Discretion as to:

• When to refer

• What info to provide

• Information given

However CoJ gives guidelines:

• Irish Creamery Milk: useful if matters of fact and (national) law settled before reference to set the context in which the interpretation is required

• Telemarsicabruzzo: not enough factual information given to CoJ for ref

When will the CoJ refuse to answer?

• Tridimas: the refusal of the CoJ to give a ruling is only where it feels it would be unhelpful; it is not strategic move akin to the centoriari principle in the US SC

Must be in line with the purpose of Art 267:

Foglia v Novello

Contractual disagreement between parties referred to CoJ in context of a French tax law which was mutually disadvantageous

Held: referred twice, both times the CoJ held this was inadmissible (they felt this was not in line with the purpose of Art 267 TFEU – it was a guise to challenge the law)

• Some commentators believe this is because CoJ didn’t feel it appropriate for an Italian court to rule on French law

Weinand Meilicke

German professor orchestrated litigation to test out own theory

Held: CoJ held this was inadmissible

Courts of Last Instance

A court of last instance must make a reference (confirmed by Centrafarm), however there are two exceptions:

1. Principle of precedence:

   1. Da Costa the facts mirrored a previous reference and so no obligation to refer

   2. CILFIT expansion of the principle of precedence – where there has been precedent in largely similar circumstances in any type of proceedings this will negative duty to refer

2. Principle of acte clair:

   1. Objective standard; must be clear to other judges in other jurisdictions

   2. Linguistic disparity because of 28 different languages

   3. This could hinder the objective of uniform interpretation

Carving out two exceptions implies trust and may also be about case-load management

However; the words of Lord Bingham encourage the making of a reference wherever there is doubt

• Lord Bingham “I am very conscious of the advantages enjoyed by the CoJ”

Effect of Art 267 Ruling

National Pensions Office v Jonkman

Held: the national court sets aside discriminatory provisions immediately; MS must nullify offending law asap & make measures to ensure EU law is complied with in that MS

The principle of precedent means a prelim ruling is effective against the MS who referred & every other MS

Validity of EU law

If an EU law is in breach of, say, fundamental rights:

Firma...