EU Law - Does the ECJ Ever Refuse to Accept a Reference (Article 267 TFEU Procedure)

  • Created by: Alasdair
  • Created on: 11-11-20 15:01
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  • Does the ECJ Ever Refuse to Accept a Reference (Article 267 TFEU Procedure)
    • Intro
      • ECJ can only give ruling on meaning of EU Law - not on meaning of national law
      • Often national court will be hearing case where one of major issues is whether provision of national law conflicts with EU Law
        • ECJ does not consider questions concerning whether EU Law conflicts with National Law
          • Costa v ENEL made this clear
            • Italian Court asked whether particular law conflicted with EEC Treaty
              • Described by ECJ as 'imperfectly formulated' question
          • ECJ doesn't interpret National Law
      • ECJ answers questions from national courts will often leave national court in no doubt as to ECJ's views on compatibility of provision of national law with TFEU
    • Absence of genuine dispute
      • Foglia v Novello (No 1) (case 104/79) [1980] ECR 745
        • Dispute over whether producer or exporter  of wine should pay French tax for wine
        • ECJ refused to accept reference
          • Not in fact genuine dispute between parties
            • Court had no jurisdiction to give ruling
          • Parties had concocted dispute and started legal proceedings
            • Subtext to ask whether or not French liqueur tax system breached EC Law
              • Both parties hoped ECJ would rule tax system (disadvantageous to them both) did indeed breach EC Law
                • ECJ, suspecting an absence of genuine dispute, unwilling to accept reference from Italian court.
      • Foglia v Novello (No 2)
        • Same case, ECJ responded it was upto national courts to decide whether to make reference
        • ECJ would refuse to accept references about cases outside its jurisdiction.
    • Insufficient information about factual background to case or relevant provisions of national law
      • Telemarsicabruzzo v Circostel (cases C-320-322/90) [1993] ECR I-393
        • Italian court referred two questions to ECJ involving complex issues of Competition Law
        • Italian provided virtually no factual background for questions
          • ECJ refused to accept reference


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