PRELIMINARY RULING PROCEDUREEuropean Union Law; Study Notes.

PRELIMINARY REFERENCING IS;

• A procedure that enable national courts to refer queries to the court of Justice on the interpretation or validity of EU law, specific to a case in their vicinity.

• Concerns how EU law should be interpreted.

• Attempts to promote active co-operation between the courts & to enforce a uniform application of EU law.Add your third bullet point here

• A ruling can be made on the how EU law is supposed to be interpreted; in order for a court to apply it correctly.

Interpretation

• A ruling on a the validity of a secondary source of legislationValidity

• A ruling for a preliminary reference is done from one judge to another.

• It is codified by Article 267 of the Treaty on the Functioning of the European Union.

• 2 Different forms of procedure in regards to Preliminary References.

ARTICLE 267.

Discretionary Reference Procedure• Where such a question is raised before any court or

tribunal of a Member state, • that court or tribunal may if it feels it is necessary to

benefit their decision making and judgement request the Court of Justice give a matter on the aspect of EU law at hand.

Mandatory Reference Procedure• Where any such question is raised in a case pending

before a court,• Where there is no judicial remedy for its decision

(such as a court of last instance,) that court or tribunal must bring the issue regarding EU law to the Court of Justice.

• Or if the case is in regards of a person being held in custody, the court of justice shall act with the minimum of delay.

The court of justice of the European Union shall have the jurisdiction to give preliminary rulings concerning;

a)The interpretation of the treatiesb)The validity & interpretation of acts of the institutions, bodies, offices or agencies of the union.

INTERPRETATION OF THE TREATIES

• The ECJ simply interprets EU law.

• The national courts then use the law as it was interpreted in their court case.

• A preliminary reference is not an appeal procedure >> It is triggered during litigation and is PRELIMINARY.

• The national courts decide questions of fact and national law, whereas the court of justice determines abstract questions of interpretation.

• The application of the preliminary ruling rests with the national courts.

Van Gend en LoosCase•Preliminary reference procedure is to ensure uniform application & interpretation of the Treaties by national courts.

Costa v ENELCase•“The court of justice has no jurisdiction to apply a treaty to a specific case or to decide upon a provision of a domestic law in relation to a treaty.”

•Cannot question the validity of domestic law.• If it has to do so, it must reformulate the question or refuse the reference.

Foto-Frost v HCase•A national court is also unable to declare an Act or Treaty of the EU as invalid.

JUDICIAL INTERPRETATION

Methods of Judicial Interpretation:

• Literal; The ordinary dictionary meaning is taken to be what the legislators wanted to convey. This method is popular in England but the ECJ tend to avoid it due to difficulties with translations and imprecise or obscure provisions.

• Contextual; The whole concept of EU law is examined as a whole. This is generally used to help understand why the provision is there in the first place.

• Purposive; Legislation is interpreted in such a way that most furthers the purposes of the union. This happens in EU law due to the “preamble” before legislation which sets out the aims and objectives of the legislation itself.

How a reference regarding interpretation arises:

• A dispute or conflict of opinions arises in national courts regarding the interpretation of a piece of EU law.

• A request is made for clarification on how the disputed provision should be interpreted.

• The case is suspended pending the ruling of the Court of Justice on the disputed provision.

• Once ruling is given, the case is continued using the interpretation of the provision they have been given by the Court of Justice.

The European Court of Justice tends to interpret

legislation using both Contextual and Purposive

techniques.

ROLE OF THE EUROPEAN COURT OF JUSTICE

ECJ

Reactive

Proactive

Unasked questions

Supposed to react & respond to the questions it has been asked by the national courts.

Occassionally the ECJ will use a proactive approach in order to reformulate a query to make the interpretation more beneficial.

Rarely will the court answer an unasked question, but it will do so

if they feel it will assist the national courts judgement.

Marks & Spencers v Customs:• Court of appeal raised a question relating to Directive

77/338• Question was based on a mistaken premise regarding

direct effect.• Court of Justice rephrased the question in order for the

national court to benefit more from a better understanding and interpretation of the law.

CHALLENGING THE VALIDITY R(TOBACCO) V SECRETARY

• Directive had been adopted by council on basis of Article 114

• (regarding the functioning of the internal market.)

• & Article 207; common commercial policy.

• Directive aims were to regulate cigarette manufacturers via, nicotine/tar content, warnings on labels etc.

• Judicial review was sought in regards of whether or not the directive should be transcribed into national law.

• Several grounds for belief of invalidity; inappropriate legislative base being one of them.

• It was referred to the ECJ for a ruling on validity; it was held to be a valid directive as Article 114 was the correct legislative base.

• Article 207 should not have been used, but did not affect validity.

• The court of justice cannot rule on the validity of the treaties.

• Only secondary legislation can be challenged.

• National courts can personally decide that EU law as being valid and decide to not refer but it cannot take the court of justices authority and declare it invalid.

Inadmissable references;• Very rare for ECJ to refuse a request. (bound to

answer if it is in regards of interpretation!!)• It will do so on a number of grounds however.• Contrived dispute~Union law does not actually apply

to case• Irrelevant~ Provisions of EU law are incidental to the

case• Insufficient Evidence~ of factual or legal basis.

MEANING OF COURT OR TRIBUNAL.

Broekmeulan Case

A Doctors registration to gain GP status was refused.He appealed to the hospitals appeal committee based on EU law provisions.The Appeals committee was given the status of a court or tribunal as its verdict was final, public authorities approve of its duties & decisions could not be contended.

Functional Test!

Nordsee Case

An independent Arbitrator was not held to be a court as they lacked compulsory jurisdiction.Their rulings were not binding.

Procura della Republica v

X

The Italian Public Prosecutor could not refer questions to the Court of Justice as he did not constitute as a court or tribunal.He only played a functional role within the system.

• There are limitations on who can request a ruling.

• There is a wide interpretation in regards of what constitutes as a Court or Tribunal.

• More bodies via the functional test can be considered as Courts or Tribunals in regards of 267 references.Dorsch Consult Case• Established the functional test

that should be applied when determining whether or not a body is a court or tribunal.

• Factors to be considered; Is the body established by

law? Is it permanent? Is its jurisdiction

compulsory? Is its procedures inter

partes? Does it apply rules of law? Is it independent?

ADVANTAGES OF FUNCTIONAL APPROACH.

Gabalfrisa

•Reference made from the regional economic/admin court of Catalonia.•Was court independent from the Tax Authority whose decisions it reviewed?•Spanish law ensures a separation of functions between the two,•Receives no instructions from the Tax Authority… WAS A COURT/TRIBUNAL.

Schmid

•Reference from Appeal chamber of Regional Finance Authority Vienna.•Inadmissible; lacked independence due to 2 out of 5 members of chamber also members of the tax authority

•Also president of tax authority was president of chambers. No separation of functions.

Wilson

•Independence linked with impartiality; authority acts as a 3rd party in relation to the authority which adopted the decision.

•External aspects; protected from external pressures >> removal of office, civil lawsuits, etc.

•Internal aspects; impartiality, level playing field, lack of interest regarding outcome.

•Needed for independence to be seen.

• A lot more bodies can now seek references even if they are not a court or tribunal.

• This allows more rulings on different areas of EU law, clarifying ambiguous provisions that may have not been reached without the functional test.

• Reduces appeals based on EU fro occurring, law already clarified.

INDEPENDENCE:• Is a requirement under the functional test for a body to invoke Article 267.• Body needs to be free from under influence/pressure.• Can be difficult to establish this…

DISCRETIONARY REFERENCE PROCEDURE

• Decision on whether or not to refer to the ECJ is left to the national court.• Usually a party will have attempted to rely on a EU law provision.• Reference however can be issued of its own volition if it feels it will help.• Case still has to be proceeding in court.• Post-case= too late.• Discretionary.• Only need to seek reference when they feel it is necessary to give judgment.• ^ matter of opinion.

MANDATORY REFERENCE PROCEDURE• Courts or tribunals whose decisions are final and without judicial remedy, “shall,”

make a reference, if provision relates to EU law.

Costa v ENEL:• Request came from an Italian Magistrates court.• No appeal from their decision would have been possible.• This was due to the small amount of money the case

involved. • “national courts against whose decision, as in the present

case, there is no judicial remedy must refer the matter to the Court of Justice.”

HYPOTHETICAL QUESTIONS.

• Although there is an obligation for the supreme courts to make references to the ECJ when a question is raised that does not mean they have to seek rulings if question is irrelevant to the case.

• Hypothetical questions are irrelevant questions.

CILFIT;“National courts or tribunals are not obliged

to refer to the Court of Justice a question concerning the interpretation of union law raised before them if the question is not relevant but if to say the answer to that

question, can in no way affect the outcome.”

PREVIOUS RULINGS.• A national court of law of last resort does not need to make a preliminary reference if that

point of law has already been previously clarified.

“The authority of an interpretation…already given by the court may deprive the obligation this purpose & not

empty it of its substance. Such is the case especially when the question is materially identical

with the already answered question.”

Da Costa case; 1963

ACTE CLAIR (CLEAR ACT)

• This doctrine is concerned when a provision is so obvious that to invoke Article 267 would be a waste of time and resources.

• It entitles a court of last resort to not invoke Article 267

• However it must be used with caution as it is possible for discrepancies with interpretation to occur.

• They have to deliberate whether they are in actual fact entirely sure about the provisions purpose.

CILFIT case:• “The correct application of Union law may be so obvious as to

leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved.”

• “In the light of the specific characteristics of Community law, the particular difficulties to which its interpretation gives risk, and the risk of divergences in judicial application via decisions in the EU.”

InterModal Transports case:• There were no obligations to refer as it was held that the tariff

proceedings provisions were so clearly worded and expressed that the court was correct to consider that there were no reasonable doubt as to how it were to be interpreted.