ARTICLE 267 PRELIMINARY REFERENCE PROCEDURE

ARTICLE 29 TEU provides that the function of the ECJ is to ENSURE THAT IN THE INTERPRETATION AND APPLICATION OF THE TREATIES THE LAW IS OBSERVED. JURISDICTION: ARTICLE 267 1(A): INTERPRETATION OF THE TREATIES A 267 1(B): VALIDITY AND INTERPRETATION OF THE INSTITUTIONS, BODIES, OFFICES OR AGENCIES OF THE UNION ECJ has unparalleled jurisdiction in deciding matters of EU law, but the procedure laid out in ARTICLE 267 will only be exercised if a national court refers an issue for interpretation ECJ HAS NO POWER TO COMPEL A NATIONAL COURT TO MAKE A REFERENCE. NOT AN APPEALS SYSTEM IN THE CASE OF AN APPEAL, THE INITIATIVE LIES WITH THE PARTIES. THE COURT HAS NO SAY. THE APPEAL COURT CAN DECIDE THE CASE, ALBEIT ON PERHAPS MORE LIMITED GROUNDS, AND HAS THE POWER TO SET ASIDE AN INFERIOR COURTS DECISION. THIS IS NOT FOUND IN THE ART 267 PROCEDURE - HARTLEY As HOFFMAN notes, the objective of the reference system is to: RETAIN THE INDEPENDENCE OF THE NATIONAL COURTS, WHILE AT THE SAME TIME PREVENTING A BODY OF NATIONAL CASE LAW NOT IN ACCORD WITH THE RULES OF UNION LAW FROM COMING INTO EXISTENCE HOFFMAN LA ROCHE. WHERE SUCH A QUESTION IS RAISED BEFORE ANY COURT OR TRIBUNAL, THAT COURT MAY REQUEST A REULING, IF IT CONSIDERS IT NECESSARY IN ORDER TO MAKE A JUDGMENT. THE COURT MUST MAKE A REFERENCE IF THERE IS NO JUDICIAL REMEDY UNDER NATIONAL LAW THE MEANING OF COURTS AND TRIBUNALS POLLARD AND ROSS NOTE: IN PRACTICE, THIS REQUIREMENT HAS CAUSED LITTLE DIFFICULTY AND THE COURT HAS RECEIVED REQUESTS FOR PRELIMINARY RULINGS FROM A WIDE VARIETY OF JUDICIAL BODIES. A COURT OR TRIBUNAL IS NOT TO BE DETERMINED WITH REFERENCE TO NATIONAL LAW CORBIAU V ADMISTRATION DES CONTRABUTIONS It must be remembered that the expression "court or tribunal" is a concept of Community law, which, by its very nature, can only mean an authority acting as a third party in relation to the authority which adopted the decision forming the subject-matter of the proceedings. DORSCH CONSULT V BUNDESBAUGESELLSCHAFT In order to determine whether a body making a reference is a court or tribunal for the purposes of Article 177 of the Treaty, which is a question governed by Community law alone, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent BROEKMUELEN BODIES THAT PERFORM DUTIES WITHT THE APPROVAL OF AUTHORITIES and operates with their assistance, and whose decisions are accepted following contentious proceedings and are in fact recognised as final, must be deemed to be a court of a member-State for the purpose of the Treaty. NORDSEE - an arbitrator or arbitral body is not a court or tribunal as it is "chosen in preference to recourse to the ordinary courts" that is, it is not of a compulsory jurisdiction and there is no involvement by the public authorities in the arbitration. CILFIT NO NEED TO REFER WHEN A RULING MAKE NO DIFFERENCE TO THE OUTCOME OF THE DISPUTE NO NEED TO REFER WHEN THE ANSWER IS SO OBIVIOUS AS TO LEAVE NO QUESTION THE DOCTRINE OF ACTE CLAIR BULMER V BOLLINGER ONLY THOSE COURTS WHOSE DECISIONS ARE NEVER SUBJECT TO AN APPEAL CAN MAKE A REFERENCE LORD DENNING (OBITER) NOT BINDING BUT HIGHLY INFLUENCIAL ABSTRACT THEORY FLAMINCO COSTA V ENEL IF NOT GRANTED LEAVE TO APPEAL OR JUDICIAL REVIEW, MATTER SHOULD BE REFERED ABSTRACT THEORY MANDATORY V DISCRETIONARY JURISDICTION