ECJ preliminary rulings
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| Article 267 TFEU (ex Article 234 TEC) | ECJ 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, offices or agencies of the Union;
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| Article 267 TFEU (ex Article 234 TEC) | 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.
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| Article 267 TFEU (ex Article 234 TEC) | 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.
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| R & V Haegeman Sprl v Belgium,[1974] | The expression ‘acts of the Community’ covers both binding and non-binding acts as well as international treaties concluded by the Community
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| Costa v ENEL [1964] | the amount in question was so small, there was no right of appeal under Italian law/ECJ confirmed that in this case the reference should be made under article 234 (3) as the magistrate was a court against whose decision there was no judicial remedy
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| Limitation to ECJ jurisdiction | ECJ does not decide the case/national courts to apply the ECJ preliminary ruling to the case pending before them/ The Article 234 is not an appeal procedure.
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| Broekmeulin v Dutch Appeals Committee for General Medicine [1981] | Medical association, a professional body was allowed to make a preliminary ruling under the Art 234 TEC (Art 267 TFEU).
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| Nordsee v Reederei Mond [1982] | not sufficiently close for the arbitrator to be considered a "court or tribunal of a Member State"
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| Corbiau v Administration des Contributions [1993] | Director of Taxation in Luxembourg was not a court or tribunal for the purposes of article 234
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| EI-Yasssini v Secretary of State for the Home Department [1999] | the Immigration adjudicator could make a reference.
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| Gabalfrisa v AEA T [2000] | The ECJ accepted that the Spanish Economic Administrative Courts, which do not form part of the judiciary but are part of the Ministry of Economic Affairs and Finance, fell within Article 234
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| Hagen v Fratelli & Moretti [1980] | if leave to the House of Lords is unobtainable the Court of Appeal is the ultimate court for the purposes of Article 177(3)
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| Da Costa en Schaak [1963] | Da Costa indicated that the ECJ was prepared to allow national courts covered by article 234(3) to rely upon the authority of a previous ruling rather than be compelled to refer the same question of interpretation to the Court.
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| CILFIT v Ministry of Health [1982] | no need to refer if:the question of EC law is irrelevant/or the provision has already been interpreted by the ECJ, even though the questions at issue are not strictly identical/or the correct application is so obvious as to leave no scope for reasonable d
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| Art 267 TFEU (Art 234 TEC) | the Court of Justice may in cases before it prescribe any necessary interim measures.
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| interim measures | an important power because it usually takes about two years for a ruling to be given by the ECJ/ECJ may use this power to order a MS from pursuing a course of conduct which prima facie breaches EC law.
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| Commission v UK [1989] | The ECJ ordered the British government to suspend the operation in the Merchant Shipping Act
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| Foto-Frost (1987) | National courts may hold EC law to be valid, but NOT INVALID/ in the decision making process if a procedural requirement is NOT followed properly, validity of that EC provision can be challenged/Only ECJ can declare it invalid.
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| effects of preliminary rulings | generally a ruling has retroactive effect. It clarifies and defines where necessary the meaning and scope of the rule as it must be or ought to have been understood and applied from the time of its coming into force
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| The Court of Justice of the European Union | one judge from each MS/appointed for a six-year term/assisted by eight Advocates-General (A-G)/elect a president among themselves.
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| The role of the ECJ | ‘ensure that in the interpretation and application of the Treaties the law is observed.’ ART 19 TEU (Art 220 TEC)/adopted a view of giving maximum effect to its object and spirit (teleological approach)
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| General Court (CFI) | To ease the workload from the ECJ/established in October 1988/has jurisdiction over disputes between the Community and its servants and applications for judicial review and damages/right of appeal on matters of law from the CFI to the ECJ.
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| Robert Bosch GmbH [1962] | shared jurisdiction and need mutual cooperation. As it was indicated by the A-G Lagrange.
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| purpose of Art 267 | to prevent the development of national case law inconsistent with EC law.
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| Art 267 TFEU(Art 234 TEC): preliminary rulings | ECJ interprets/National court decides the case/Ensures conformity and uniform application of EC law/Exercise in judicial cooperation bilateral and horizontal relationship
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| Pretore de Salo [1987] | the Court/tribunal who acted:Independently & in accordance with law/Must have jurisdiction conferred on it by law/And, power to give binding determinations to give rights/ obligations to individuals.
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| Corbiau v Administration des Contributions [1993] | the fiscal authority (director of taxation)in Luxembourg was NOT found court/tribunal for the purposes of the Art 234 TEC (Art 267 TFEU).
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| El Yassini gives some more guidance that ECJ will be looking for what may amount to a ‘court or tribunal’ for the purposes of Art 267 TFEU (Art 234 TEC) | Whether a particular body qualifies as a court or tribunal:Established by law/Permanent/Compulsory jurisdiction/Procedure interparties/Applies rule of law/Independent
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| Bulmer v Bollinger [1974] (L.Denning: abstract theory) | Lord Denning clarified that that in England the HL has the mandatory jurisdiction./ But, not clear whether it applies also to courts whose decisions in the case in question are not subject to appeal (the concrete theory).
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| Costa v ENEL [1964] | concrete theory
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| Magnavision [1987] | CA was the final one & UK made a reference.
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| Chiran Corp v Muex [1995] | if no appeal allowed the Court who is hearing decides whether to refer under Art 234 TEC (Art 267 TFEU).
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| Abstract theory | court/ tribunal whose decisions are never subject to appeal.
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| Concrete theory | c/t whose decisions in the case in question are not subject to appeal.
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| ECJ jurisdiction | Must be matter of EC law/Genuine dispute
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| Foglia v Novello (no1) | ECJ held: the proceedings had been artificially created in order to question the legality of the French law (tax system), they were not genuine!
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| Telemarsicabruzzo (1993): | Sufficient factual and legal information/‘facts, arguments of the both side, application of the national law in the subject matter and why the national judge made the ruling’ had to be explained.
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| CILFIT | The question must be necessary
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| CILFIT criteria | No need to refer if:1)Question of EC law is irrelevant/2)Provision has already been interpreted/3)Correct application is so obvious as to leave no scope for reasonable doubt (doctrine of acte clair).
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| Da Costa en Schaake | ECJ allows to rely upon the authority of previous ruling.
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| International Chemical Cooperation | invalid provision is invalid in all MS? ECJ said, Yes. So the system of precedent is emerging???
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| Cilfit: a few questions to think??? | ECJ decisions have precedential value which is binding on national courts?/departure from ‘bilateral and horizontal’ relationship?/
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| If the decisions of the ECJ have the status of binding precedent, then this makes the ECJ more like an appellate court that an advisory body.
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| Defrenne v SABENA (no 2) | Temporal restriction, potentially huge financial payout
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| Barber v Guardian Royal Exchange Assurance Group | legal certainty (restriction again)
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