Preliminary Rulings

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  • Created by: Hope
  • Created on: 07-05-16 20:36
What article does the preliminary reference procedure come from?
267 TFEU
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Why is article 267 of particular significance?
Because it has been one of the most influential aspects of the court's jurisdictions in shaping EU law
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What does preliminary referencing mean for individuals?
It allows individuals an indirect individual access to the court of justice
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What are the other advantages of preliminary referencing?
Allows development by interpretation, secures uniformity of interpretation of EU law
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Which case presented the advantages of preliminary referencing?
Da Costa
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What can individuals do/not do to use this procedure?
Individuals cannot go to the court of justice directly; national courts have to make the decision to refer
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What characteristics must a court of tribunal have so they can refer?
Official recognition or exercise of a public function, it must have the power to determine the legal position of individuals with binding effect
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What won't disqualify a body from consulting a court for the purposes of Article 267?
The fact that there may be national limits on jurisdiction
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What criteria do the court take into account when making a determination?
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, whether it is independent
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Which type of institution does not qualify to refer to the court of justice?
political/governmental institutions and investigative agencies
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Which courts or tribunals are able to make a reference?
Any court or tribunal, no matter how low they are in the order
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Which courts or tribunals are obliged to make a reference?
In theory, any court who's decisions are never subject to appeal, in fact, any court whose decision is not subject to appeal in the specific case included
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When do courts have no obligation to make reference?
When it considers that a decision of the CJ is not necessary to enable it to give judgement, when the question of EU law is materially identical to a question which has already been the subject of a preliminary ruling, doctrine of acte clair
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What case can be used as an example for these?
CILFIT
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What is the doctrine of acte clair?
When the correct application of EU law is so obvious as to leave no scope for any reasonable doubt as to the manner in which this question is to be resolved
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What should be taken account when determining acte clair?
Peculiar features of EU law, different languages and different terminologies, every EU provision must be interpreted as a whole
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What is the effect of these tests on national court?
They are likely to constitute a huge burden on national courts
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What happens in case of a failure to met obligation?
It may constitute a serious breach in state liability
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Who decides whether a reference is necessary or not?
The court of justice steadfastly adheres to the idea that national courts to determine whether a reference is necessary
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Will the court ever refuse to give a ruling?
Yes, in circumstances where they deem it inappropriate
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What circumstances will the court deem inappropriate?
When it considers a ruling not necessary, when the question is materially identical to one that has already been raised, doctrine of acte clair
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What could be some improvements to the current position?
Regional EU courts, specialist courts, vetting procedure, abolishing the obligation?
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Card 2

Front

Why is article 267 of particular significance?

Back

Because it has been one of the most influential aspects of the court's jurisdictions in shaping EU law

Card 3

Front

What does preliminary referencing mean for individuals?

Back

Preview of the front of card 3

Card 4

Front

What are the other advantages of preliminary referencing?

Back

Preview of the front of card 4

Card 5

Front

Which case presented the advantages of preliminary referencing?

Back

Preview of the front of card 5
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