Preliminary Rulings - Article 267

• 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
• Allows member states ro request the ECJ to give preliminary rulings on EU law when there are interpretation issues

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

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

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

Can only interpret Treaty - not national law - Costa 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

Refusal to accept references - Foglia v Novello 

• There must be a genuine dispute 

Insufficient information - Telemarsicabruzzo v Circostel

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

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)

Broekmeulen v Huisarts Registratie Commissie

• Appeals Committee of Dutch medical profession wished to refer a question
• Court/tribunal? Yes
• Reasoning? No other forum available, decisions binding, affect right to work under EU law

Nordsee v Reederei Mond

• An abritrator wished to refer a question
• Court/tribunal? No
• Reasoning? Decision to arbitrate was purely voluntary; jurisdiction not compulsory

Syfait

• The Greek Compettion 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.
• 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.ECJ used the same criteria as AG Jacobs – Dorsch Consult - Secretariats role of the GCC: to investigate; GCC’s role: to adjudicate; President of the GCC: also involved in supervising the Secretariat 
• Held not a court or tribunal as:Analysis - ECJ took a too formalistic view; the A-G is right in saying it would ensure uniformity
  • 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 – 1 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 

Is 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; OR

2. Provision already interpreted by the ECJ (Da Costa); OR

3. 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)

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

a Supreme Court has to make a reference (mandatory) under the principles in Factortame

Costa v ENEL

MJs 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"

ECJ guidelines for exercising the discretion to refer:

• Not bound by national precedent - Rheinmuhlen Dusseldorf
• May refer at any stage of the proceedings
• If national court is in doubt of the validity of secondary legislation they should refer immediately - Foto-Frost 
• They should refer if the case requires new interpretation of EU law, if a decision is required or if questions are raised regarding the validity of the law
  

Ex parte Else (CA) - Lord Bingham guidelines

• Is a decision on EU law critical? - If yes, refer. Unless a national court can resolve issue with complete confidence

Trinity Mirror (CA) - guidelines

• Only refer where the reference is appropriate - Where question is of general importance or ECJ ruling is likely to promote uniformity throughout EU
• Don't refer where the reference is inappropriate - Where question is on a narrow point or unlikely to have wider application

Kobler v Austria

• State 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.

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

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

Defrenne v Sabena

• Rulings 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)