#15637 - Preliminary Reference - European Law

PRELIMINARY REFERENCE

Foundations:

Art. 267 TFEU: CJEU has jurisdiction to give preliminary reference on: (a) “interpretation of the Treaties”; (b) “the validity and interpretation of acts of the institutions … of the EU.” National courts must make a reference “if it considers that a decision on the question [of the interpretation of EU law] is necessary”

The PR procedure has allowed the ECJ to shape the relationship between itself and the national courts; developing doctrines such as direct effect, supremacy, and fundamental rights.

It is a reference system not an appeals system: CJEU interprets EU law, while national courts apply it (although the line can be very thin). Because the ECJ does not have to decide the law on the facts of a given case, it has had scope to use PR to develop broad constitutional principles.

PR and standing: the standing of all national courts to make a PR can compensate the narrow standing rules for an individual to directly challenge an EU act under Art. 263.

Relationship between ECJ and national courts under Art. 267 PR allows for dialogue between the ECJ and national courts. Relationship was originally horizontal and bilateral; however, CJEU has used Art. 267 to develop a more hierarchical, multi-lateral relationship:ECJ is superior to national courts (Foglia) and the CJEU’s decisions are increasingly held to be binding on all national courts of all MS, not just the one which made the reference (International Chemical Corp).

Questions which can be referred: the CJEU can rule on the interpretation of the Treaties and EU secondary legislation. A PR can be made regarding national law which implements EU law as long as the national act has a sufficient connection with EU law.

Courts / Tribunals which can refer:

• What is a court / tribunal? For the ECJ to decide the categorisation under national law is not conclusive. E.g. in Broekmeulen an Appeals Committee for GPs was held be a court, even though it wasn’t under Dutch law (relevant factors: adversarial procedure, legal representation, gave final decisions).

• Obligation / discretion to refer: most national courts have a discretion to refer issues of interpretation to the CJEU where necessary, but a national court “against whose decisions there is no judicial remedy” has an obligation to refer. What counts as ‘no judicial remedy’?

  • Abstract theory: bodies whose decisions are never subject to appeal (e.g. UKSC).

  • Concrete theory: key question is whether the court’s decision is subject to appeal in the type of case in question. ECJ took this approach in Costa v ENEL (magistrate’s decisions were capable of being appealed, but there was no right of appeal in the present case —magistrate was treated as being a court from which there is no judicial remedy).

If a national court of last resort breaches Art. 267 duty to refer, state may be liable under Kobler.

Preliminary rulings and legal certainty:

• ECJ’s rulings on interpretation take effect at the time the law entered force, not the time of the judgment —so interpretation applies to legal relationships before the ruling was given.

• This has implications for the finality of national courts decisions —e.g. where a national court gave the law one interpretation in a case in which a PR was not made, that is subsequently incompatible with a later decision of the ECJ.

  • Kühne & Heitz [2004] establishes that the importance of loyal cooperation under the Treaty requires national courts to reopen final decisions, but only where it is possible to do so under national law.

PRECEDENT

The effect of precedent is to shift the relationship between the national courts and the ECJ to a vertical hierarchy with multilateral relationships.

National courts have no obligation to make a reference. Court can decide a reference is not needed because an issue has already been resolved, or there is no doubt as to the validity of an act.

If an issue has been resolved, the ECJ will just restate their previous judgment:

• Costa v ENEL: Art. 267: national courts can formally make a reference where the ECJ has previously decided the question referred, but ECJ will generally restate the previous judgment.

Thus a statement could be made formally, but it must raise a new argument / factor or the substance will just be repeated. This shifts the relationship between national and EU courts from bilateral (rulings only of relevance to the national court that requested them) to multilateral (ECJ rulings have an impact on all national courts).

The Costa principle has been developed by the ECJ in later cases —an ECJ ruling can be relied upon even if: (i) the issue arose in a different type of proceedings; (ii) questions were not identical:

• CILFIT [1982]: Italian court sought a preliminary ruling on whether it was exempt from its Art. 267 duty to refer if the answer to the preliminary reference question was obvious. CJEU: ECJ’s rulings are authoritative in situations where the point of law is the same, even though the questions posed in earlier cases were different and even though the types of legal proceedings in which the issue arose differed.

• To refer a materially identical question “may deprive the obligation of its purpose and thus empty it of its substance”

CILFIT encourages national courts to rely on the ECJ’s prior rulings where the substance of the legal point has already been adjudicated—effectively using them as precedents for national courts.

International Chemical Corporation [1981]: although a preliminary ruling is primarily directed to the national court which made the reference, it should be relied on by other national courts before which the matter arises. ECJ rulings have a multilateral effect and precedential impact.

Analysis: development of precedent:

• Largely inevitable —the original bilateral conception (ECJ’s rulings only relevant for the national court that requested them) was unrealistic— the ECJ would be forced to hear matters it had already resolved, wasting time and resources.

• Error costs: risk national courts may misinterpret ECJ authority. Such costs do not undermine the system of precedent since they are outweighed by gains: (i) national courts become enforcers of EU law in their own right —they are empowered to act where the ECJ has already sufficiently clarified the law; (ii) national courts become part of an EU judicial hierarchy; (iii) high rate of national implementation of ECJ rulings (96.3%).

ACTE CLAIR

Where an answer is so clear that no reference is required. The doctrine gained limited support from the ECJ in CILFIT —held doctrine may apply where: (i) correct application is “so obvious as to leave no scope for any reasonable doubt” as to the answer; (ii) answer must also be as clear to the courts of other MS and the ECJ. The question of whether a question is sufficiently obvious must be “assessed on the basis of the characteristic features of EU law” —i.e. it is stated in multiple languages, which may bear different interpretations [difficult for national courts to determine].

These factors mean the ECJ will normally be best suited to the interpretation of EU law — it will be extremely difficult for national courts to find the acte claire doctrine apples.

Debate over acte claire

• Arnull: CILFIT is dangerous because MS courts will take advantage of acte clair to avoid referring questions to the ECJ, undermining uniform interpretation/application of EU law.

• However, system is efficient in that it leaves clear cases to national courts, making them ‘delegates’ of EU law —the limits balance ‘error cost’ with saving time / resources of ECJ. Further, there are safety devices built into the system, independently of CILFIT to ensure that national courts do not refuse to make a reference where the CILFIT cirteria are not met:

  • National courts who push the limits of the doctrine will be aware of the possibility of damages liability under Kobler. This not only encourages references by courts of last instance, but also by lower courts —an individual will bring proceedings for Kobler damages before a lower court, who can then make a reference to the ECJ.

  • State may be liable to enforcement action under Art. 258 TFEU (Commission can give a reasoned opinion on MS failing to fulfil its Treaty obligations).

  • Issue may come before the ECJ via an alternate route—i.e. might be brought before the courts of another MS, which then make a PR.

ACCEPTANCE OF THE REFERENCE: ECJ’S PERSPECTIVE

Initially the ECJ took a liberal approach, reading the reference so as to preserve its ability to pass judgement — e.g. in Costa v ENEL the court did not scrutinise the reasons for the reference and they were willing to extract from an imperfectly formulated question one which really pertained to Treaty interpretation. This approach was used to foster a spirit of cooperation with national courts and to allow the ECJ to develop doctrines like direct effect and supremacy.

However, it is now clear that the ECJ regards itself as having ultimate authority to decide whether or not a reference is warranted.

• Foglia v Novello (No. 1) [1980] ECJ refused to give a reference on the basis that the proceedings were “artificial” —parties to a contract for the sale of wine had included a clause dealing with tax specifically to enable them to challenge French import tax via a preliminary reference. CJEU: a PR would “jeopardise the whole system of legal remedies available to private individuals to enable them to protect themselves against tax provisions which are contrary to the Treaty”.

• Foglia v Novello (No. 2) [1981]: Italian court...