preliminary references/rulings

1. what happens when a point of eu law is raised in a national case and clarification is needed

• preliminary rulings provide clarification on eu law when a national court is uncertain about interpretation or validity

• ensures a uniform interpretation and application of eu law across al 27 member states

• NOT AN APPEAL- this is not about reviewing a national courts decisions but ensuring eu law is interpreted correctly in the case

1. shared jurisdiction between national and eu courts

• national courts decide questions of fact and apply national law (solve case)

• jeu provides preliminary rulings on interpretation and validity of eu law when requested (to aid solving of case)

• national courts spend their case and seek clarification from the jeu

• after receiving the ruling national courts continue proceedings and apply the ruling

1. contrast action for annulment article 263 tfeu

unlike preliminary rulings clarifying eu act, an action for annulment challenges the legality of an eu act and is a direct challenge before the cjeu

disagreeing/questioning validity with the law rather than asking for further clarification of it

2. cjeus function in preliminary rulings

1. primarily reactive-responds to references from national courts

2. sometimes proactive- can reformulate questions to provide a clearer response

3. rarely answers unasked questions but may clarify points relevant to the national court

2. limits to cjeus jurisdiction

the jeu cannot:

1. assess the validity of national law- it only interprets eu law involvement to ensure uniform app across MS

2. rule on national factual disputes-the jeu does not resolve factual disputes with member states, this is for national courts jurisdiction

3. decide how eu law applies in specific cases-it only provides guidance on interpretation of eu law, it does not decide how it should be applied individual cases. it provides guidance leaving national courts decide outcome/application

2. cjeu can refuse to answer preliminary references if

1. no genuine dispute- eg a hypothetical question or lacks a real disagreement

   case 104/79 folia v Novello n1-no real disagreement over tax legality

2. the question is irrelevant to the case

   case c-62/93 bp superbas v Greece- the reference was unrelated to resolving the case

3. insufficient information about facts or national law provisions

   case c-320-322/90- without proper background (adequate factual/legal context) the jeu could not give an effective ruling

3. role of national courts in preliminary rulings

• once the jeu provides a ruling the national court must apply it to the case

• case c 206/01 arsenal fc v reed is a rare example where a national court refused to follow a jeu ruing

• preliminary rulings are binning on all courts (case c-28/62 da costa)

what the jeu does not do in prelim

• the jeu does not apply law to facts-thats the national courts role

• the national court may have to misapply conflicting national laws in light of the ruling

article s67 tfeu-preliminary references

article 267 tfeu was previously article 234 ec

jeu juridiction article 267 (1)

what the jeu can rule on:

1. interpretation of the treaties (how primary eu law should be understood)

2. validity and interpretation of eu legal acts (how secondary eu law should be understood:regulations directives decisions etc)

who can refer questions

1. any national court-at any level- May refer (article 267 (2))

2. courts of last instance (no appeal available) must refer unless an exception applies (article 267(3))

rules of interpretation (teleological interpretation)

teleological interpretation focuses on interpreting eu law in light of its purpose, objectives and broader context. it ensures that the interpretation aligns with the goals of eu intergration and its effectiveness

1. contextual approach:the jeu examines eu law as a whole rather than isolating individual provisions ensuring coherence across legal framework

2. purposive approach: emphasis is placed on achieving the objectives set out in eu legislation

   in re Adidas ag the court highlighted that interpretation should maintain the effectiveness of eu law

questions of interpretation vs validity

Interpretation: applies to primary treaties and secondary legislation (regulations,directives). this interpretation ensures uniform application

validity applies only to secondary legislation- the cjeu is the sole exclusive authority to asses validity (247(3))

national courts cannot declare eu law invalid but must refer such questions to the jeu as established in case c-314/85

is the question necessary under article 267 (2)

under article 267 (2) national courts have discretion to refer questions to the jeu if they consider it necessary to resolve a case

a national court does not need to refer a question if:

1. the answer is irrelabt to the case (cilfit criteria)-if the question of eu law has no bearing on the resolution of the case referral is unuessary-national courts must ensure that the question is essential for their decision making

2. the question has already been answered by the jeu (acte eclaire)- fit the jeu has previously ruled on similar national courts can rely on established case law without seeking further clarification (da costa case) this ensures consistency and avoids redundant referrals

3. the answer is obvious (acte Clair meaning no reasonable doubt exists)- established in cilfit v ministers della sanita, the doctrine allows national courts to refrain from referring questions if the correct application of eu law is sclera than no reasonable doubt exists -this requires:

   1. consideration of all authentic language versions of eu law

   2. recognition that eu legal terminology may differ from national legal systems

   3. awareness of unique interpretive challenges posed by eu law

challenges to the acte clair doctrine

1. multilingual nature of eu law: all language versions are equally authentic which can lead to divergent interpretations across member states-courts must compare these versions to ensure clarity

2. difference between eu and national legal systems- eu legal terms often have distinct meanings compared to national law complication interpretation

3. inconsistent application- doctrine has been criticised for its inconsistent application by national courts leading to potential risks for uniformity in the interpretation of eu law

what constitutes a court or tribunal?

• a functional approach is used- a body may qualify even if it is not officialy called a court

  eg case 246/80- a medical registration committee was a court+ nordsee v rendered mond an arbitrator was not a courts

• dorsch criteria for a court of tribunal: a body must

  1. be established by law

  2. be permanent

  3. have compulsory jsuitirction (binding)

  4. follow inter partes procedures (where all parties can participate)

  5. apply the rule of law

  6. be independent

courts obligation to refer under article 267 3

• lower courts may refer but are not obliged to

• higher courts where no appeal is available must refer unless the issue is:

  a. acte clair (obvious)

  b. a previous ruling already settled the matter (da costa)

• case kobler v Austria an Austrian court wrongly refused to refer a case leading to state liability for judicial errors

new developments in preliminary references

• the cjeu workload has increased leading to changes in procedure. now the general court handles preliminary references in specific areas (non sensitive)

  eg- vat systems, excise duties, customs code,tarrif classification of goofs, passenger compensation, greenhouse gas emission allowances

• member states must submit all prleimary rulings to the cjeu first

• the European parliament council or ecb are notified and may intervene