EU Law: art 267

final year


Potential exam q's:

 1. ‘The Court of Justice of the EU maintains that it has an open-door policy so far as answering questions posed by national courts under Article 267 TFEU is concerned. This policy is neither sensible nor reflective of reality. ‘ Critically evaluate this statement. 

2. The preliminary ruling procedure under Article 267 TFEU urgently needs reform. In particular, the only way to give the Court of Justice more time to deal with the really important cases is by allowing national courts a greater role in the interpretation of EU law.’ Critically discuss. 

3. Zoe, a single mother, recently moved to an area within the jurisdiction of Sussex Council. She asked it to pay the costs of nursery care for her 2 year-old son. Sussex Council rejected her claim entirely, stating that because of budgetary constraints, priority would be given to applicants who have lived in the area for at least 5 years. Zoe invoked the Directive to challenge Sussex Council’s decision in the English courts, eventually losing in the Supreme Court last week. In its judgment, the Supreme Court held the following:i) that the Directive conferred no actionable right to free nursery care; and ii) since the final implementation date for the Directive had not passed, the Council had acted lawfully in rejecting Zoe’s claim on the basis of the 2012 UK Regulations. The Supreme Court declined to refer any questions to the Court of Justice for a preliminary ruling. It is November 2013 and Zoe seeks your advice as to whether she has any further redress on the basis of EU law, and what action she should take and against whom.

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Art 267 origins and its structure

- Way of enforcing rights via courts indirectly, links back to discussions on institutions (CoJ main institution of EU), gives effects to rights via the courts. An 'arm' of the CoJ. Emphasis on relationships between nat courts+ CoJ+way of communicating nat judges with EU judges. Allows development of law via interpretation (Van Gend, Francovich, Factortame, Mangold, Kucuk)

- CoJ judgements often v. short, single decision, no descent and no strict precedent like common law and often changes decisions later. So methods to allow nat courts to ask about EU law if it considers that a decision on the Q is necessary to enable it to give a judgement request CoJ to do so or where such question raised in case pending before court whose decision there is no judicial remedy under nat law (art 267) to go back to nat court and apply (indirect - indiv have rights indirectly heard). This is compared with art 263 and art 258/259: insitution requests not individual for judicial review of EU acts, locus standi restrictions i.e. need to be a priv'd ind to do so, difficult to get JR to CoJ as restrictions v. tight, similarly, infringement actions under 258/259 brought by commission or rarely by MS directly to CoJ. 

- Art 267: Secures uniformity of interpretation of EU law (the original justification offered by the Court! Da Costa [1963]. Individuals have no right to appeal to the Court of Justice: it is for the national court to make the decision to refer.Whether a body is a “court or tribunal of a Member State” is a matter of EU Law, and has given rise to disputes: DHSS v. Barr &Montrose Holdings

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Art 267 TFEU origins and its structure more

- Few would of guessed Art 267s' importance in shaping EU law. Art 267= 'of seminal importance for EU law development& the 'Jewel in the crown'of the CoJ's jurisdiction (Craig+De Burka 2011). Prior to Nice Treaty, and although not yet exercised (as of 2011), only ECJ could give prelim rulings. General court jurisidiction accorded to give rulings in specific areas laid down by Statute of CoJ per Art 263. Relationship between nat courts +CoJ=reference only, nat courts make decision to refer. CoJ will give ruling, which is then sent back to nat court to apply EU law at hand. It is prelim rulings in which direct effect and supremecy have developed.

- Art 267: prelimimary rullings concerning two things from nat courts to CoJ: (particular significance and argubaly one of the most influencial aspects of Courts jurisdiction to shape EU)

1. Interpretation of treaty

2. Validity of acts of institutions (or secondary legislation: directives/regulations

Two types of references:

1. Discretionary references from lower nat courts (not obliged to but may make a reference)

2. Mandatory references from courts against whom there is no remedy under nat law (final court case, not in the land though). MUST make reference.

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What type of Q's can be referred?

- Art 267 has been principal vehicle through which relationship between nat court+EU legal system has been fashioned. Relationship now more vertical/multilateral not horizontal/bilateral (see Van Gend en Loos, Von Colson, Mangold, Kucukdeveci, Pfeiffer). The CoJ has enrolled the nat courts as enforcers+appliers of EU law. Nat courts have now accepted this hierarchical process. Art 267 allows indirect access by individuals to CoJ. 

What type of conditions/questions can be referred? Subject matter of the reference (anything that relates to EU's legal order):

1. Concerning the interpretation (not application) of the Treaties (purely an interpretative technqiue but not apply the interpretation as this is for nat courts to do. Art 267(1)(a): most seminal judgements given via this section for direct effect/supremecy. CoJ doesnt pass judgment of validity of nat law (Grau Gomis 1995) or a purely internal MS matter (Vinkov 2012 & Cicala 2011) or if nat court failed to adequately define factual/leg context of dispute (Telemarsicabruzzo Spa v. Circostel)

2. Validity and interpretation of acts of the institutitons, agencies, offices of EU (secondary legislation). Firma Foto-Frost (nat courts must never overturn an EU measure and must ask for ref as only EU can overturn, MS has no power to invalidate an EU measure).Can be in relation to EU provision that is or is not directly effective! Recommendations included too!

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Courts/tribunals who can refer

- It is for CoJ to decide whether a body is a court or tribunal for these purposes and categorisation under nat law is not conclusive (v.broad def): A number of factors will be taken into a/c when determining this: (Dorsch Consult 1997)...

1. Must have judicial type of function (per CoJ definition)

2. Must have official state recognition

3. Must be independent and perm

4. Must be a dispute resolution system

5. Must make binding decisions about individual rights/obligations

6. Must not be merely advisory

7. Must be national (not international i.e. ECHR excluded). 

- Broekmuelen 1981: Appeals Commitee for Medicine=final appeals court, gen prac have to register through this, creates appeal procedures that affect indiv rights+court must therefore have opportunity of ruling on issues of interp. Delivers final decisions=within court and tribunal def!

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Who CAN and who MUST

Art 267 differenciates between those who may and those who MUST refer (Art 267(2)and(3). 

1. Discretionary references from lower nat courts (not obliged to but may make a reference): 

-No fetter to be applied within nat law: Bulmer v Bollinger (Denning, anti-EU, dont overwhelm EU, caution2be taken) but Ex Parte Else 1993 (Lord Bingham: courts must always refer to CoJ when needed,no hurdles/fetter should be imposed!). CoJ rarely rejects to give a rulling: tested case=Foglia v Novello (refused=fabricated) and Meilicke 1992 (hypothetical neture so refused to give ruling) but Mangold (fabricated but EU heard anyway!)..importance?relevance?

2. Mandatory references from courts against whom there is no remedy under nat law (final court case, not in the land though). MUST make reference.

- When no other remedy, nat court MUST/SHALL make prelim ref, explicit in Treaty (Art267(3)). This prevents nat case law not in accordance with EU law from being estb. in any MS. 

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Mandatory ref's exceptions

- Exceptions to mandatory ref's: acte clair (where issue already decided in other case identical or solution is so obviously clear whether ruling or not, so as to avoid overloading CoJ. Strict conditions (CILFIT 1982: yes can be clear but must be equally clear to ALL MS's, and equally clear in all of launguages of EU=diff to satisfy acte clair, can not make prelim ruling when it considers that a decision of the CJ is not necessary to enable it to give judgment, case argued as too restrictive and more discretion should be afforded to nat courts, AG Jacobs in Weiner argued nat judges should not have to consider the official language versions of EU acts, this argument was reinforced by the Association of the Councils of State and Supreme Admin Jurisdictions of the EU arguing that CILFIT should be relaxed and applied in a common sense way!)

- De Costa: when the question of EU law raised is materially identical to a question which has already been the subject of a preliminary ruling in a similar case! '

- If nat court refuses to make prelim ref as ante clair, can be liable for damages (state liability per Kobler: held should of made prelim ref but failed to as followed EU case on similar facts, no manifest infringement but can be liable for failing to make prelim ref, Austrian proff wanted increase bonus for working more than 25yrs as was entitled but had moved around states and total time of service=more than 15yrs, clearly right to remuneration but Austria only calculated time was in Aus, thus breaching free movement of persons)=harder for nat courts to NOT make prelim ref. 

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Issues with acte clair

- In this context account should be taken of the peculiar features of EU law, the particular difficulties to which its interpretation gives rise: comparison of different language versions of EU legislation, and terminology peculiar to, or different in meaning under, EU Law and the risk of divergence in judicial decisions within EU. Every provision of EU law must be placed in its context and interpreted in the light of provisions of EU law as a whole, regard being had to the objectives and its state of evolution at the date on which the provision in question is to be applied. These tests are likely to constitute an enormous burden on the national court.

- Failure by a court of final instance to meet its obligations may constitute a ‘serious breach’ within the meaning of the criteria for state liability. Can CILFIT and Köbler be reconciled?

- Rasmussen 'remedying the crumbling EC judicial system 2000: Thrust of CILFIT should be to give back initiative to the judges of MS's, trusting them to solve own far more questions of interpretation than EU law. Difficult to pin down those cases deserving EU attention and those deserving nat attention=as indispensable as difficult! (Own opinion: 2 fold-perhaps EU trying to improve dialogue but underlining factor is asserting their supremecy and almost undermining the nat judges capabilities, not letting go of their 'baby'. 

- In Intermodal, COJ declined to extend CILFIT conditions 'must be so obvious that there was no scope for any reasonable doubt as to way Q should be resolved+equally obvious'. 

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Open door policy?

-CoJ will not normally 2nd guess why nat court thinks a prelim ruling is necessary. If nat court thinks necessary, CoJ will entertain. But is this 'open door policy' still good idea? AG Jacobs in Weiner (definition of PJ's and nightwear=trivial?) (Pre-Lisbon case): need for evolutionary approach to Art 267, EU leg has extended to new fields and the volume of the EU leg has greatly increased so we need to avoid imbalance in numbers of cases from different MS's and should concentrate on matters of greater importance and general interest i.e. constitutional matters. 

Nature of judicial relationship?: what is point of Art 267 today? Any new proposals to limit the amount of prelim ref's? Horizontal dialogue w/all or CoJ as supreme arbiter? Specialist courts only i.e. higher courts to make prelim ref's? Fragmentation already occuring (limits under Art 275-276: CFSP and some aspects of freedom, security & justice)?

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Art 267 reform commentary

- Komarek 2007 'In the court(s) we trust? On the need for hierarchy and differentiation in the preliminary ruling procedure': argues for final court ref's only, with narrow exceptions i.e. when lower court considers arugment for invalidity are well-founded and Council to decide which EU law measures may be subject to prelim ref from lower courts, current approach undermines nat court hierarchies, what does mature legal system require? Consistutitional and efficiency arguments in favour of cutting out lower court references! (But is this satisfactory given the importance of Art 267 as the vital constitutional link between nat courts and CoJ (the bridge between the two contentious legal systems?)).The CoJ needs to speak with persuasion and clarity as a supreme court, rather than handing down sometimes contradictory and often insufficiently reasoned answers. The current system which undermines nat judicial structures by allowing lowest courts to talk directly to ultimate interpreative auth=neg effects for both nat judicial process and CoJs' mission. Whilst CoJ reduced average duration to 3.1months for prelim rullings proceedings, has added 10 more judges in 2004! The suggested reforms would make the nat courts TRUE parts of the EU system. Need more trust and ascerting EU supremecy is not the way! No distinction between criminal or trivial matters! CoJ proposed: 'urgent prelim ruling procedure' but this isnt an issue as in Bot when deportation was issues and only took 6 weeks and we dont want this 'urgent' to become standard procedure and undermine legitimacy further.

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Academic commentary

1. Wattel, ‘Köbler, CILFIT and Welthgrove: we can’t go on meeting like this’ (2004) Kobler and CILFIT: made it clear that the national court should ask for a prelim rulling in every case that may expose the government to liability if it has not been dealt with by the COJ before. Particularly as EU legislation is always changing, complex and totally inaccessible. COJ when regretful of a previous decision should be clear about such regret rather than impelling MS to take account of possibility that previous case law in not obsolete. One cannot have one's cake and eat it! Should do like did more often in Keck and decide to limit Dassonville case law. Kobler=source of legal uncertainty, procedural entanglements and more arrears in the decision of cases. The COJ should be held liable too for its erroneous judgements as in Gilly and De Groot i.e. dont live in a glass house and throw stones! Always the tax payers who are liable in reality and if they realised this, would not be happy with the 'effective protection' in Kobler. 

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Academic commentary cont'd

3. P Allott, ‘Preliminary rulings – another infant disease’ (2000): prelim rullings bridged relationship between EU legal order and MS's legal order but did not provide a coherent overall constitutional structure. The EU is a disorderly Leviathan, disordered and disordering. The worm in the bud in European integration is mistrust. Art 267 has been central to the virtual unconstitution of the European Communities. Two models: integral model (nat courts are community courts applying community law) and conflict of laws model (nat courts applying foreign law). Prelim rullings and directives symbolise and embody the alienation of the EU legal system from nat legal systems. Prelim rullings perpetuate idea that EU law is intrinsically externally and even exotic like international law over nat law. Prelim rullings have decayed in recent years of EU law making and law applying instruments. Should replace prelim rulling system with a Community review allowing nat courts (also union courts) to apply EU law fully and finally as a normal source of law alongside other sources of law (integral model encouragement). Change of consicousness a 'metanoia' is urgently needed in the inner perspective of the EU to include a naturalising, a familiarising and a dealienating of the constitutional structure. 

4. Bebr 'the existence of a genuine dispute 1980: who may say with any certainty that the plaintiff entertained the action seriously or whether he merely sought to obtain a decision in a test case that raised a question of principle, this is a slippery concept, not without dangerous pitfalls' (in relation to Foglia case). 

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Own Commentary

- Do not want Art 267 to become ineffective like principle of subsidiarity! We dont want hesistant courts from applying the crucks of EU law properly. Still a relatively new concept that requires particular detail and consideration. 

- Radical change proposed: transform system from which CoJ becomes appellate in nature rather than reference based. But this was largely rejected as 'such a proposal would debase the entire system of co-operation established in the Treaties between nat courts and CoJ, thus would result in a hierarchical system? Surely this is what we have now anyway but discretely and hidden? But nat courts cannot be expected to decide points of EU law? But aren't they doing that now anyway? Should the trust be given back to MS's rather than undermining them? Or would this result in a collapse in the whole purpose of the EU judiciary?

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