This is the new one This is the new meta pixel newest one
100% satisfaction guarantee Immediately available after payment Both online and in PDF No strings attached
logo-home
Previously searched by you
Previously searched by you
logo
EU £8.99   Add to cart
Quickly navigate to
Preview
  2.  
  3. University Of Law
  4.  
  5. Graduate Diploma In Law
  6.  
  7. European Union Law

Exam (elaborations)

EU
 0 view  0 purchase

Nicely presented and easy to follow. Topics include: Article 267 Procedure, Direct Effect, State Liability, Indirect Effect, Social Policy and Free Movement (Goods, Persons, Services Establishment)

Preview 1 out of 15  pages

Document information

  • June 18, 2019
  • 15
  • 2018/2019
  • Exam (elaborations)
  • Unknown

Subjects

Written for

All documents for this subject (1)

Seller

avatar-seller
sago.palm_Antennarius.maculatus

Reviews received

Content preview

EU LAW REVISION

ARTICLE 267 REFERENCES

DEFINITION
 This is a procedure whereby national courts can put questions to the ECJ either on the interpretation of parts of the TFEU (most common) or relevant secondary legislation (acts
of the institutions)- guidance on the ‘meaning’ and ‘validity’ of Directives can be given to national courts by the ECJ using this reference procedure.

The purpose is to ensure a uniform application of EU law throughout the EU (TEU Article.119(1)) = it serves the further development of the law
o National courts of EU member states do not understand a specific area of EU law, so they throw the question up to the ECJ for clarification- the answer is binding on
the national court
o The litigant may request a referral, the court determines whether or not to refer.
WHO CAN MAKE A REFERENCE?
*Guidance is only available to a body which is a ‘court or tribunal’ under Article 267 TFE. If the Supreme Court of a UK court is in question, this is not a controversial point.
1. Must firstly establish the meaning of ‘Any Court of Tribunal’? as any court or tribunal can raise an issue- the ECJ has generally accepted references from a wide range of bodies,
including tribunals. However, there are some bodies which do not have the power to make a reference.
1. The criteria/guidelines for deciding whether or not the body is capable of making a reference was set out in Dorsch Consult 1997:
i. Is the body established by law? (Regulations)
ii. Is it permanent? (Yes, if no evidence that it’s just a temporary, ad-hoc or transitional body- needs to operate on a continuous basis)  if nothing
specifically relating to this, look to the surrounding circumstances
iii. Is its jurisdiction compulsory? (Yes, if we are told that any disputes must be heard there UK legislation provides that claims must be brought there,
binding and no alternative procedure)
iv. Is its procedure ‘inter partes’ (hearing for all sides)?  Inter partes does not have to be people attending in person
v. Does it apply rules of law? (If appeals are possible suggests rule of law applies/follows procedures/ guidance)
vi. Is it independent? (impartial members and no conflict of interests)
1. Not all the factors need to be met, only needs most to be present This was demonstrated in Broekmeulen where the Appeals Committee
of the Dutch medical profession was considered a ‘court or tribunal’
2. Alternatively, in Nordsee v Reederei Mond, private arbitration to resolve construction dispute was not considered to be a court of tribunal
due to the voluntary nature of the proceedings and absence of official involvement
WHAT MAKES A REFERENCE NECESSARY?
*Assuming that the BPC is a court or tribunal, Article 267 TFEU allows it to make a reference if it considers a ruling from the ECJ on these is ‘necessary’. The case of CILFIT sets out the
criteria national courts should apply in deciding whether a ruling is ‘necessary’ for judgement. This is up to the national court to decide, the ECJ cannot interfere in this matter.
When a court/tribunal should not refer (negative criteria):
a. CILFIT case criteria= this means that an ECJ ruling should be considered ‘unnecessary if one of the following situations applies:
vii. The questions raised are ‘irrelevant’ to the outcome of the case
viii. Where decisions of the ECJ have ALREADY DEALT/ RULED on the point of EU law in question; and (if not mentioned in exam, assume not) (Da costa)
1. However, this would not prevent courts from referring the same question to the ECJ, but it should do so only if it thinks that the ECJ might
change its mind (Da Costa)
ix. Doctrine of Acte Clair- the application of EU law is obvious as to leave no scope for any reasonable doubt (universally obvious)- established in Da Costa
en Shaake: no blinding clarity on the matter
 then conclude on whether the ECJ is ‘necessary’. Even if one of the points applies, the reference cannot be made.
WHEN COURTS SHOULD AND MUST REFER?
*If the ruling is necessary, Article 267 TFEU then makes a distinction between two different types of court- ‘mandatory’ jurisdiction and ‘permissive’ jurisdiction.
MANDATORY JURISDICTION PERMISSIVE JURISDICTION
Mandatory Jurisdiction MUST refer (267 (3)): Courts of Permissive Jurisdiction MAY refer (267 (2)): There are two options:
Supreme Court/High Court for example - Courts subject to appeal (not at the top of the appeals hierarchy- having the right to appeal) MAY make a reference
(highest courts- no discretion- courts of last depending on ECJ and national guidelines for referring a case: it has discretion
resort) - Not obliged- They could decide the question of EU Law themselves, individual can then appeal if interpreted
 When there is no further right of incorrectly
appeal in that particular case (Costa v
ENEL) ECJ guidelines for national courts in its Information Note on how to exercise discretion: ALWAYS START WITH THIS BEFORE UK
 Mandatory courts are obliged to make 1. A reference should be ‘particularly useful’ where: there is new question of general interest for uniform application of EU
references and a failure to do so (ECJ law or existing case law that is not applicable to a new set of facts (not previously dealt with)
will not intervene but an individual may 2. Higher courts cannot prevent lower courts: Even if a higher court in the UK (High Court) has already rules on these issues,
bring an action against the national lower courts are still free to make its own reference if it so chooses (Rheinmuhlen)
court) may result in state liability and 3. A national court cannot declare EU law as invalid. It should refer if doubt over interpretation (Foto-Frost)
will have a claim if the breach is 4. Must be necessary for judgement: Before making a reference, national law question should be resolved first (Irish
‘sufficiently serious’(Köbler) Creamery Milk)- a national court may decide to make a reference as soon as it finds that a ruling on a question of EU Law is
necessary to enable it to give judgement.

UK Guidelines – these guidelines should also be considered when exercising discretion:
 In ex parte Else: Lord Bingham urged national courts to make a reference when the point of EU Law is ‘critical’ to the
outcome of the case if unable to answer in complete confidence, ECJ has greater expertise to do so
 In contrast, the Court of Appeal in Trinity Mirror plc urged national courts to show a ‘greater measure of self-restraint’.
Reference most appropriate where (1) question is of general importance (as opposed to a narrow point) and (2) ruling
likely to promote uniform application throughout Member States (as opposed to unlikely to have wider application)

CONCLUDE: After applying these guidelines, should the question/s of EU Law be referred to the ECJ?


COULD THE ECJ REFUSE THE REFERENCE?
ECJ can refuse if:
1. Absence of a genuine dispute between parties: Foglia v Novello (parties conspired to get favourable ruling)
2. Insufficient information about factual background to case or relevant provisions of national law: Telemarsicabruzzo v Circostel
3. Advise on EU law only and not national Law (Costa v Enel)- Italian court asked whether a specific provision of national law breached Treaty, ECJ can only interpret Treaty
law. Costa case established that ECJ cannot deal with issues of national law.
4. Kobler v Austria: state was sued for failing to make an Article 267 TFEU reference.
CONCLUSION
 TEU Article 4(3): a ruling is binding, and national courts in all Member States must apply interpretation in all subsequent cases, regardless of whether it was a mandatory or
permissive court or tribunal making the reference.
 ECA 1972 s.31(1) and (2): all courts must follow ruling of ECJ.

The benefits of buying summaries with Stuvia:

Guaranteed quality through customer reviews

Guaranteed quality through customer reviews

Stuvia customers have reviewed more than 700,000 summaries. This how you know that you are buying the best documents.

Quick and easy check-out

Quick and easy check-out

You can quickly pay through credit card for the summaries. There is no membership needed.

Focus on what matters

Focus on what matters

Your fellow students write the study notes themselves, which is why the documents are always reliable and up-to-date. This ensures you quickly get to the core!

Frequently asked questions

What do I get when I buy this document?

You get a PDF, available immediately after your purchase. The purchased document is accessible anytime, anywhere and indefinitely through your profile.

Satisfaction guarantee: how does it work?

Our satisfaction guarantee ensures that you always find a study document that suits you well. You fill out a form, and our customer service team takes care of the rest.

Who am I buying these notes from?

Stuvia is a marketplace, so you are not buying this document from us, but from seller sago.palm_Antennarius.maculatus. Stuvia facilitates payment to the seller.

Will I be stuck with a subscription?

No, you only buy these notes for £8.99. You're not tied to anything after your purchase.

Can Stuvia be trusted?

4.6 stars on Google & Trustpilot (+1000 reviews)

0 documents were sold in the last 30 days

Founded in 2010, the go-to place to buy revision notes and other study material for 15 years now

Start selling
£8.99
  • (0)
  Add to cart