Article 267 Reference Procedure - EU Law - Lecture 4

How is EU law different from international law in regards to Article 267 TEU? How does international law differ from its application to EU law?

The difference between EU law and international law is the existence of Art 267 TFEU which demonstrates the shift from a inter-state contractual agreement to a national court esque procedure which is enforceable and applicable against all the member states.

Art 267 TFEU allowed for the ECJ to utilise it’s links with national courts. The article allows the national judges to act in their national jurisdiction, whilst simutaneously acting as a EU judge.

In summary, Art. 267 has enabled the process of national judges becoming EU judges.

EU law and international law are distinct upon the basis of enforcement, with the EU clamping down on free-riding and enforced by institutions which aren't (to a certain extent) controlled by Member States

How is EU law enforced - there are 3 ways? And what examples are there of this?

1. Article 258 TFEU provides the legal framework for the European Commission to initiate infringement proceedings against an EU Member State that has failed to fulfill its obligations under the treaties.

2. ECJ can issue recurring monetary fines which are daily fines for non-compliance, such as member states breaching components of EU law.

3. There is also private enforcement

What is known as ‘private enforcement’ in EU law? and what are the 3 benefits of this, and potential criticisms of ‘private enforcement?

What is private enforcement? → Private enforcement is actions which aren't completed by the Commission, it allows citizens to enforce EU law in their local courts - any individual European citizen bring a claim when EU law hasn't be enforced and this non-compliance impacts them - this significantly changes the scope of EU Law.

The benefit of private enforcement of EU law is that →

• it is accessible

• recruits a wide range of judiciaries to enforce EU law - much more scandalous for a member state to defy its own national judges

• expands the pool of who can enforce EU law and ensures the backing of the enforcement of EU law

Potential criticisms regarding private enforcement → This can lead to tension with the local/national judiciary since the lower court judges have extensive powers to put aside national legislation that conflicts with EU law or striking down legislation that are unconstitutional for EU law - lower court judges are enthusiastic users of EU law due to extensive powers granted to them.

What is the outcome of Van Gend En Loos case, and how does it relate to the EU law and Article 267 TFEU ‘preliminary reference’ procedure?

In summary, Van Gend En Loos concluded that EU law could be enforced before national courts.

And … EU law has direct effect and it can be enforced in national courts

This view of Article 267 can be seen as flowing from the decision of the Court in the famous Van Gend en Loos case in which the Court of Justice held that the Treaties had established a new legal order

What is the outcome of Costa v ENEL case, and how does it relate to the EU?

In summary, this case outlined that EU law had primacy over CONFLICTING national law.

What is meant by primacy is that when there are conflicts with EU law and domestic law, that EU law prevails and takes precedent.

What is the summary, context and outcome of Simmenthal case, and how does it relate to the EU?

Summary → In summary, this case concluded that national courts have to set aside ANY national law that CONFLICTED with EU law.

Context → In Simmenthal, the argument was that national judges don't have the power to set aside Acts of Parliament, only Parliament can make/unmake law. But the ECJ argued contrary saying that EU law gives all national judges even employment tribunal judges the ability to disapply any national law that conflicts with EU law

Outcome → This means that national judges at ANY level when faced with a conflict with national and EU legislation, they must set aside the national legislation irrespective of whether their national court gave them such extensive powers - it doesnt matter whether they are high court judges or more minor court judges.

How does Article 267 TFEU influence dynamics between the member states’ Government and Judiciary?

National judges can now interact directly with the ECJ, enforcing EU law within national courts - this makes it easier to enforce EU law within national court.

This cuts out governments and increased the possibility that enforcement of EU law could take place without needing to get involved in the kind of political negotiation that is often needed to enforce obligations under other treaties.

What does Article 267 TFEU - reference procedure outline? In what 2 instances can national courts issue a preliminary reference?

The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, of ices or agencies of the Union;

• Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.

• Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.

What is the role of the ECJ in the application of Article 267 TFEU reference procedure, and how does this differ from the national courts adjudicating the case? How is it different?

The ECJ will interpret the treaties and the acts, legislation of the union where any matter of interpetation is raised by a member state. The member state court can send a question as to how they interpret EU law in a particular case - This is completed during the case, NOT after the case.

Despite the ECJ interpreting the EU law in the area, factual matters are for the national courts to decide. The ECJ is only focused on resolving matters regarding the interpretation of EU law, so the verdict of the national law cases can go either way in favour or against the claimant. The ECJ doesnt dispose the case entirely, nor does it focus on the context/facts at hand.

Why is Article 267 TFEU a reference procedure? And what does this mean for the national courts and CJEU?

• A reference procedure (otherwise known as preliminiary reference) is that the national courts refer a question to the ECJ, while the case is still live before they even decide it.

• In Article 267, the national judge stops the case and asks for clarification on what the EU law means in the context through ECJ and then consequentially disposing the case. The national court and ECJ cooperate to decide the case effectively together.

Former Attorney General Bobek in Consorzio Italian Management has criticised the backlog and delays to make a reference procedure (invoke Article 267 TFEU), what did he argue in summary, and what is his solution to addressing the preliminary reference backlog? And did the CJEU follow his suggestion or not?

Former Advocate General Bobek has noted several potential problems with the new system including disputes about whether a case falls within the categories assigned to the General Court.

In Consorzio Italian Management, AG Bobek suggested that the obligation to refer should apply only where there is ‘an objective divergence detected in the case law at the national level thereby threatening the uniform interpretation of EU law’ rather than merely a subjective doubt about the application of EU law in the specific case. The CJEU did not follow this suggestion.

• Bobek is critical of the current approach towards the preliminary readings as per Article 267 TFEU, arguing the scope for national courts to request a reading is too generalised and that we must restrict the scope in regards to importance - Bobek is advocating for a more national supreme court approach where cases interpreted must fulfill a specific threshold to be considered - this is his answer to the backlog and build-up of cases for the ECJ.

Why might Former Attorney General Bobek’s (in Consorzio Italian Management) suggestion of a ‘supreme court’ approach and criticism of the preliminary reference delay be rejected by other critics?

Though, this reluctance by the ECJ to implement a more supreme court approach is probably rooted in the fact that the ECJ is a body of the EU.

Therefore by implementing such an approach is an act of eroding the illusion of sovereignty that member states have and if we position it as a supreme court esque process, it strips member states and courts from the voluntary nature of the EU where courts are encouraged to send requests for interpretation of EU law matters (‘federalisation’ concerns).

ECJ is reluctant to relinquish control especially in concerns to free-riding member states and non-compliance from member states like Hungary.

Who can send a preliminary reference as per Article 267 TFEU?

Only member states’ national courts and national judges can request a preliminary reference.

Karen Alter has criticised the usage of Article 267 TFEU preliminary references, and what was her following argument/criticisms? And why does the Cartesio case support her argument?

Karen Alter has shown that lower courts have been much more enthusiastic users of the 267 procedure than higher courts. She shows how EU law disrupts national hierarchies between courts and gives lower courts powers they did not previously enjoy.

Karen Alter argues that the lower court judges are more inclined towards the ECJ provided they have excess powers which they are usually not accustomed to under their domestic laws in contrast to the high courts - the Cartesio is a case which reinforces the ECJ role in protecting the lower court judges' extensive powers

What is the context, issue and outcome of the Cartesio case (which Karen Alter discussed)?

Context → Cartesio is a Hungarian limited partnership which has two partners of Hungarian nationality and residing in Hungary. The partners decided to move the operational headquarters of Cartesio to Italy which was refused by the commercial court. The court held that under Hungarian law it is not possible to transfer the operational headquarters to another member state while retaining the legal status of a company governed by Hungarian law. + This case was regarding Hungarian legislation which outlined a lower courts request for Article 267 TFEU could be rejected or reversed by the higher courts in Hungary. This reversion was considered a violation of EU law.

Issue → Among other questions asked during the preliminary reference, the main focus was -

• Whether a lower courts request for Article 267 TFEU could be rejected or reversed by the higher courts in Hungary?

• May Articles 43 [EC] and 48 [EC] be interpreted as meaning that national rules or practices which prevent a Hungarian company from transferring its seat to another Member State of the European Union, are incompatible with Community law?

Outcome →

• A higher national court cannot interfere with the making of the reference by a lower court

• National measures that prevent companies from moving their registered or real seat to another member state limit in fact their freedom of establishment guaranteed. Such measures may effectively discourage companies from moving abroad, thus making the exercise of the freedom of establishment less attractive (not as important)

What does Article 267(3) TFEU outline in relation to Article 267 TFEU Preliminary Reference?

Article 267(3) TFEU outlines where a national court fails to request a preliminary reading from the ECJ regarding the interpretation of EU law, they are REQUIRED to refer it.

This is a compulsory requirement, there must be a reference when there is an EU issue in question (though.. there is a question of efficiency of this approach).

What is invalid to ask in relation to making a Article 267 preliminary reference procedure? And why is Article 267 TFEU important in ensuring european integration and harmonisation, and how this plays into ‘invalidity/validity’ interpretations of EU law across member states?

Equally, if there is a question of validity when implementing a legislation/act and this decision in question is invalid, a reference to the preliminary ruling must be made to the ECJ - this is regarding the validity of EU law.

Article 267 TFEU focuses on interpreting EU law, and not the actions of EU based institutions.

This is a contention because concerns on validity means specific member states might perceive validity/invalidity differently amounting to the conflicting with the free common market which the EU relies on for functionality - emphasis on the ever lasting union of Europe.

Foto Frost case on the application of Article 267 TFEU Preliminary Reference Procedure and invalidity, what is the context and outcome?

Context → This was a claim that a decision of the Commission was invalid as it breached an EU regulation.

Outcome → The CJEU noted that Article 267 gave sole jurisdiction to the CJEU to rule on the validity of EU law. To hold otherwise would imperil the uniform application of EU law.

What are the 5 key factors that the ECJ take into consideration when considering whether to take Article 267 TFEU Preliminary Reference Procedures made by member state national courts’ or judges?

1. Is the body established by law?

2. Does the body/it have compulsory jurisdiction?

3. Does the body/it apply rules of law?

4. Is the body/it independent?

5. Does the body/it have inter-parties hearings?

One of the key factors of the ECJ deciding whether to take a preliminary reference request (Article 267 TFEU) is ‘is the body established by law’, what does the case Broekmeulen v Huisarts Registratie Commissie state about this?

Broekmeulen v Huisarts Registratie Commissie outlined that the definition of what is a 'court' (as debated in Broekmeulen case) is a matter for EU law and must be interpreted/determined by the ECJ for the purposes of Article 267 TFEU, the national law and court cannot determine this.

One of the key factors of the ECJ deciding whether to take a preliminary reference request (Article 267 TFEU) is ‘does it/the body have compulsory jurisdiction?’, what does the case BN v Getin Noble Bank state about this? And what is the context of BN v Getin Noble Bank and the conclusion?

Issue → ECJ previously emphasised that court with no independence was not a court by EU standards and the issue arose in regards to 'if we go upon the basis that a non-independent court isn't a court by EU standards, can this said court then send a request for a preliminary reading by the ECJ to interpret law in light of EU law'

Outcome → The ECJ will assume the independence of the national court automatically unless the presumption of no independence can be rebutted and that there could be a imparital and independent tribunal. That presumption is rebutted through the means of non-compliance with the several factors which are listed below as -

• whether its jurisdiction is compulsory

• whether its procedure is inter partes

• whether it applies rules of law and

• whether it is independent

What are the TWO exceptions where there is NO duty to refer Article 267 TFEU preliminary references, what are they and what are the TWO cases which outline this?

1. Acte Clair case → If EU law is clear, it would be wasteful in terms of time and effort if national courts continually posed questions whose answer was obvious.

2. CILFIT case: Where the application of EU law is “so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved” there is no duty to refer. But the national court must be convinced that “the matter is equally obvious to the courts of the other Member States and the Court of Justice”

What do Craig and de Burca say about the TWO exceptions where there is NO duty to refer Article 267 TFEU preliminary references?

Craig and de Burca note that this transforms national courts into EU law courts in their own right, capable of disposing of EU law issues without involving the Court of Justice where the relevant EU law point is clear.

What do Mancini and Keeling say about the CILFIT case which established one exception where there is NO duty to refer Article 267 TFEU preliminary references? And the dynamic between national courts and the ECJ?

Mancini and Keeling see the CILFIT ruling as part of a “give and take” approach of the CJEU, giving national courts the power to deal with EU law on their own but subjecting it to strict conditions.

What does the ECJ do after hearing/answering an Article 267 TFEU Preliminary Reference, what is the impact of this afterwards - TWO things occur?

1. the previous rulings of the ECJ and interpretations of EU law via preliminary readings (article 267 TFEU) become a form of precedent - therefore national courts can look towards the ECJs previous judgements to inform their outcome, hence we can see the transformation of the EU law from a inter-state contractual agreement to being a form of law (similar to national law - though distinct)

2. transforming national courts into EU courts - national courts will effectively interpret and enforce EU law on its own

What is ‘docket control’ in relation to refusing Article 267 TFEU preliminary references made by national courts? And how does this relate to Foglia v Mariella Novello?

Docket control is known as the ECJ deciding which cases to respond to and provide interpretations to EU law for and what questions of interpretation it will participate in.

Foglia v Mariella Novello was a case in which the Court of Justice asserted that, while it would pay due regard the views of the national court, it had the power of ultimate decision as to whether an answer from the Court of Justice was necessary in a case.

Why is the Foglia v Mariella Novello case important to the ‘docket control’ and the nature of Article 267 TFEU preliminary reference procedure? And what will the ECJ not consider?

This case reinforces the active nature of the ECJ in it's choice of preliminary readings - reinforces that the ECJ is not a passive respondant to member states' national courts - emphasising the power of choice that the ECJ holds on determining which cases to preside over.

There is no question of EU in the facts disclosed -

1. hypothetical questions

2. question raised not relevant to the dispute

3. unclear facts

4. the questions are not sufficiently clearly set out.

And does the ECJ reformulate preliminary references given to it, and under what circumstances?

The ECJ will often-times reformulate the questions sent to them by national courts or if the issue is much more grave, then the ECJ will expand the scope of interpretation depending on the extent to which EU law is impacted.

Cartesio case as an example of attempts by national superior courts’ interference with a lower courts’ right to refer/preliminary reference as per Article 267 TFEU, what is the context and outcome?

Context → This case was regarding Hungarian legislation which outlined a lower courts request for Article 267 TFEU could be rejected or reversed by the higher courts in Hungary. This reversion was considered a violation of EU law.

Outcome → a higher national court cannot interfere with the making of the reference by a lower court

Data Protection Commissioner v Facebook Ltd as an example of attempts by national superior courts’ interference with a lower courts’ right to refer/preliminary reference as per Article 267 TFEU, what is the context and outcome? And how it relates to the Cartesio case?

Context of the case → the High Court in Ireland had requested a preliminary hearing based on the interpretation of the EU law in the facts, but the Supreme Court in Ireland didn't deny the request, but more so had an issue with wanting to overturn the findings of the high court on the facts (the facts being what subsequently resulted in the request for a preliminary reading) - this means that the case has to go back to the high court and they'll have to follow the Supreme court's ruling on the facts, but the ultimate decision to maintain the reference is based on the lower courts decision alone.

Importance of the case → Facebook case expands on the Catersio case, since the Facebook case expands on the scope that the Supreme Court cannot intervene with the reference made by the lower court, but instead it can dispute the facts upon which caused the lower court to make the reference. Once the Supreme Court disputes this and changes it, this ruling is binding upon the lower courts to change it - it is not voluntary, but binding upon them.

A.K. (Independence of the Judiciary) as an example of attempts by national superior courts’ interference with a lower courts’ right to refer/preliminary reference as per Article 267 TFEU, what is the context, outcome and importance?

Context of the case → Polish judges alleged that their forced retirement and the setting up of a ‘Disciplinary Chamber’ empowered to punish judges for decisions made in the course of their work and whose members were alleged to lack independence due to the manner in which they were appointed.

Outcome of the case → Article 267 provided a means for one court within a national system to involve the Court of Justice in its dispute with another court within the same system

• “precluding cases concerning the application of EU law from falling within the exclusive jurisdiction of a court which is not an independent and impartial tribunal […] in particular, as to the direct or indirect influence of the legislature and the executive and its neutrality with respect to the interests before it and, thus, may lead to that court not being seen to be independent or impartial”

Importance of the case → Article 267 means that national courts can involve the CJEU in disputes with other courts within the national system if the dispute is relevant to EU law.

Why is Article 267 TFEU (preliminary reference procedure) oftentimes described as a ‘process of dialogue’, and what are the TWO relevant cases which demonstrate this?

The national court is bound to follow the interpretation of EU law given by the Court of Justice and this gives the impression of a hierarchical system. However, the process can also have elements more reflective of cooperation and dialogue.

This is demonstrated in the cases of -

• Tarrico II MAS case

• PSPP Case

Tarrico II MAS case as ‘process of dialogue’ within Article 267 TFEU, what is the context and outcome?

Context of the case → There was an attempt to alter financial wrongs rather than being criminal, but to be civil wrongs, so the Italian Prime Minister wouldn't lose his office or be criminally liable. ECJ concluded that making financial crimes only civil matters is a breach of EU law, as it impacts the interests of EU. But the Italian court was concerned about retroactive punishment and punishing people criminally for acts which weren't yet punishable, but the ECJ concluded that you must interpret italian law as meaning EU law, as these matters are still full crimes - Though Italy was concerned about breaching the constitution - the ECJ revised their outcome, not requiring to set italian law aside.

Outcome of the case → Initially ECJ stated that Italy had to comply with EU law, which meant retrospective criminalisation. It raised concerns on the EU's primary and the uncertainty of whether EU had primacy over matters extending to the Italian constitution - hence the ECJ revoked their previous statement, so the Article 267 TFEU is a process of dialogue between these member states and ECJ.

PSPP case as ‘process of dialogue’ within Article 267 TFEU, what is the context, outcome and importance?

Context → The German Constitutional Court (BVG) made reference to the CJEU asking whether the ECB’s bond buying programme was beyond the powers given to the Bank by the EU treaties.

Outcome → ECJ granted the progamme was within its power, but the BVG concluded that the ECB had exceeded it’s authority.

Importance → The decision of the ECJ to uphold the bond-buying as going beyond the powers of the EU - instance of refusal by member states and limits of the ECJ, emphasises the compliance required between member states and the ECJ

What does Article 267 TFEU (preliminary reference procedure) allow - what is the 5 negative and positive impacts of this?

1. It ensures the coherence of EU law by ensuring that the Court of Justice provides an authoritative interpretation of EU that can be applied by Member State courts when EU law issues arise. This prevents EU law disintegrating 27 different versions as national courts could give interpretations.

2. It also establishes that national courts may not rule on the validity of EU legislation.

3. Article 267 has provided a link between the Court of Justice and national judiciaries which has been vital in the recruitment of national judges as enforcers of EU law. Indeed, it is the basis of the claim that national judges are also EU judges

4. The article is a reference procedure that involves cooperation between national courts and the CJEU. However, the procedure has become more hierarchical in nature with the CJEU expecting national courts to follow its previous rulings and engaging in control of its docket (refusing cases or reformulating questions).

5. Article 267 is part of the disruption of national judicial hierarchies that you will see in other areas of the course. The CJEU has been protective of the right of lower courts to send references even when higher national courts wish to stop them.