Article 267 reference procedure

routes to the CJEU

1) Direct actions against EU institutions

- Judicial review (articles 263 and 265 tfeu)

article 263 and 265: proceedings against the institutions by MS, other institutions or in very limited circumstances by individuals.

- Damages (Article 268 and 340 TFEU)

Damages claims against union institutions by individuals.

2) Direct actions against Member states

- Article 258 tfeu- action brought by commission

-Article 259 tfeu-action brought by another MS

-Article 260 tfeu- imposition of fines on MS.

- The ECJ may, at the commissions request, impose fines in certain circumstance

3) Enforcement of EU Law by individuals

i) Only limited access for individuals before the CJEU; e.g. individuals cannot sure Member States or individuals before the ECJ.

ii) Individuals must generally enforce their EU rights before national courts invoking direct effect etc.

The preliminary rulings procedure (Article 267 tfeu): Jurisdiction of the ECJ

a) Purpose of procedure

i) to ensure, by means of authoritative rulings on the interpretation and validity of EU Law, the correct and uniform applications of EU Law by the courts of MS.

ii) Not an appeals procedure

LIMITATIONS OF COURTS JURISDICTION

COSTA V ENEL:

• Italian court asked whether a specific provision of national law breached Treaty
• ECJ: can't interpret national law but can interpret Treaty
• ECJ rephrased question: "If there is a conflict between ANY national legislation and the Treaty, which takes precedence?"
• According to the doctrine of supremacy, the Treaty takes precedence
• Italian Court must apply ECJ's interpretation to facts

ii) Refusal to accept references

- absence of genuine/ hypothetical question.

- insufficent information about factual background to  case or relevant positions of national law

Telemarsi V Circostel - This was a complex competition law case about an Italian law banning private sector TV companies from certain frequencies. The Italian court referred two questions to the ECJ, but gave little information about the factual background or relevant national law.

National Courts: The power to refer

Meaning of any court or tribunal.

i) ECJS DEFINITION is the DORSCH CRITERIA

Relevant factors in maing this determination include whether:

- the body is established by law

- it is permanent

-its jurisdiction is compulsory

-its procedure s inter partes.

-it applies rules of law

-it is independent

ii) Borderline cases

Broekmeulen

In Broekmeulen was refused registration as a GP in the Netherlands. He appealed against the decision and the Appeals committee of the Dutch medical…