EU Law - Courts of Permissive Jurisdiction: The Discretion to Refer (Article 267 TFEU Procedure)

  • Created by: Alasdair
  • Created on: 11-11-20 13:52
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  • Courts of Permissive Jurisdiction: The Discretion to Refer (Article 267 TFEU Procedure)
    • ECJ guidelines (Information Note national courts should bear in mind)
      • (a) References are 'particularly useful' where there is new question of interpretation of general interest for uniform application of EU Law, or existing case law not applicable to new set of facts
      • (b)
        • Higher national court cannot prevent lower national court making reference if it chooses to do so
          • Rheinmuhlen-Dusseldorf v Einfuhr-under Vorratssteille fur Getreide und Futtermittel (No 1) (case 166/73) [1974] ECR 33
            • German cae where ECJ made it clear lower court could refer  point of EC (now EU) Law to ECJ under now Article 267 TFEU and was not bound by appellate court.
      • (c)
        • National court cannot declare a piece of EU Law invalid
          • Foto-Frost v Hauptzollamt Lubeck-Ost (case 314/85) [1987] ECR 4199
            • Confirmed (c) with ECJ telling German court only ECJ could declare piece of EC (now EU) Law invalid.
              • Practically, if court of permissive jurisdiction is  doubtful about validity of piece of EU Law, must refer case to ECJ
                • Exceptionally, doesn't have discretion
      • (d)
        • National court may decide to make reference as soon as it finds ruling on question of EU Law is necessary to enable it to give judgement
          • Usually appropriate for national court to define factual and legal context of question first to ensure ECJ has all necessary information
    • UK guidelines
      • R v International Stock Exchange, ex p Else Ltd [1993] 2 CMLR 677
        • Lord Bingham MR issued some guidelines encouraging national courts to refer
          • Urged British courts normally to exercise their discretion in favour of referring where question of EC (now EU) Law was critical to outcome of case
            • Unless British court considered itself able to answer question in complete confidence
              • Pointed out ECJ had far more expertise in issues of EC (now EU) Law than national courts
      • Trinity Mirror plc (formerly Mirror Group Newspapers Ltd) v Customs and Excise Commissioners [2001] 2 CMLR 33
        • Court of Appeal suggested national courts should show 'a greater measure of self-restraint' in deciding whether to make references to ECJ to ensure ECJ did not collapse under its case-load.
        • A reference is most appropriate where question is one of general importance and where ruling is likely to promote uniform application of EU Law through EU.
        • References are inappropriate where ruling was unlikely to have any application beyond case in hand.


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