Preliminary ruling

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Preliminary ruling

  1. 1. Preliminary Ruling
  2. 2. EU Courts: Art. 19 TEU <ul><li>The Court of Justice of the European Union shall include the Court of Justice , the General Court and specialized courts. It shall ensure that in the interpretation and application of the Treaties the law is observed. </li></ul><ul><li>Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law. [remember Art. 4(3) TEU : sincere cooperation] </li></ul><ul><li>2. The Court of Justice shall consist of one judge from each Member State. It shall be assisted by Advocates General. The General Court shall include at least one judge per Member State. </li></ul><ul><li>The Judges and the Advocates-General of the Court of Justice and the Judges of the General Court shall be chosen……… for six years…. </li></ul><ul><li>3. The Court of Justice of the European Union shall, in accordance with the Treaties: </li></ul><ul><li>(a) rule on actions brought by a Member State, an institution or a natural or legal person; </li></ul><ul><li>(b) give preliminary rulings , at the request of courts or tribunals of the Member States, on the interpretation of Union law or the validity of acts adopted by the institutions; </li></ul><ul><li>(c) rule in other cases provided for in the Treaties. </li></ul>
  3. 3. ECJ and General Court: Art. 251 ff TFEU <ul><li>One Judge per Member State; Judge is appointed by Member State. </li></ul><ul><li>The Court of Justice sits in chambers (3-5 Judges) or in a Grand Chamber (13 Judges), according to the complexity of the case; No dissenting opinions but collegiate judgment </li></ul><ul><li>The Court of Justice is assisted by eight Advocates-General . The AG makes reasoned submissions to the ECJ. Opinions are not binding but are often a complete review of relevant case law </li></ul><ul><li>The General Court (used to be ‘Court of First Instance’) has jurisdiction to hear and determine at first instance actions or proceedings referred to in Articles 263, 265, 268, 270 and 272 TFEU; General Court consists of at least one Judge per MS; General Court may act as single Judge, but mostly as a chamber with 3 or 5 Judges. </li></ul><ul><li>Courts adjudicate the limits of EU competence as against the Member States’. Court often uses ‘teleological’ interpretation: looking at purpose of Treaty text. Development in constitutional court? </li></ul>
  4. 4. Judicial control in the EU <ul><li>2 infringement procedures : direct verdict on compatibility of MS’s conduct with EU law </li></ul><ul><ul><ul><li>Public enforcement procedures ( Articles 258 and 259 TFEU ) </li></ul></ul></ul><ul><ul><ul><li>Private enforcement procedure (Direct effect of EU law: claim before national courts, based on ECJ ruling in Van Gend en Loos ) </li></ul></ul></ul><ul><li>Preliminary ruling : no verdict on MS’s behavior, merely interpretation of EU law, leaving it for national courts to decide </li></ul>
  5. 5. Preliminary Ruling Article 267 The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union; Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court. If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay. [PPU, procédure préliminaire d'urgence ]
  6. 6. Preliminary ruling <ul><li>NOT: </li></ul><ul><li>Infringement procedure; ECJ does not award remedies, no verdict on validity of national laws </li></ul><ul><li>Right of appeal; individuals do not have a right of appeal to ECJ, national courts decide after ECJ sends answer back </li></ul>
  7. 7. Importance of Art. 267 TFEU <ul><li>Foster development of (principles of) EU Law: direct effect, supremacy, fundamental rights, etc. </li></ul><ul><li>Secure uniform application EU law </li></ul><ul><li>Develop relation ECJ and national courts: </li></ul><ul><ul><li>horizontal and bilateral: courts were equal, ECJ sent preliminary ruling to relevant court </li></ul></ul><ul><ul><li>vertical and multilateral: ECJ as top of hierarchy, rulings have impacts on all courts: supreme court? </li></ul></ul>
  8. 8. Preliminary Ruling <ul><li>Referring of what </li></ul><ul><li>Referring to whom </li></ul><ul><li>Referring by whom </li></ul><ul><li>Referring in what situation </li></ul><ul><li>Referring… and then? </li></ul>
  9. 9. What can be referred? <ul><li>“ The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning: </li></ul><ul><li>(a) the interpretation of the Treaties; </li></ul><ul><li>(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;” </li></ul><ul><li>“ (c) interpretation of the statutes of bodies established by and act of the Council, where those statutes so provide” </li></ul><ul><li>(c): Never used, no clear scope and removed by Lisbon Treaty </li></ul><ul><li>(a): Primary legislation. Before Lisbon: EC Treaty, now expanded to cover whole of EU law: ‘Treaties’. </li></ul><ul><li>(b): Secondary legislation, binding and non-binding. Difficult to directly challenge validity of secondary legislation (Art. 263 TFEU: Standing), art. 267 TFEU enables indirect challenge. Cases: ICC and Foto-Frost </li></ul><ul><li>ECJ also assumes competence in cases national law is based on or refers to EU law: extension of ambit of EU law without conferral! </li></ul>
  10. 10. Who may refer? <ul><li>“ Where such a question is raised before any court or tribunal of a Member State , that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.” </li></ul><ul><li>Up to ECJ to decide whether or not a referring body is a court or tribunal </li></ul><ul><ul><li>makes sense: ECJ interprets EU law -> Article 267 TFEU is EU law: ECJ decides scope of ‘court or tribunal’) </li></ul></ul><ul><li>Categorization under national law is not conclusive </li></ul><ul><ul><li>Broekmeulen </li></ul></ul><ul><ul><li>Mr Broekmeulen held a Belgian medical qualification and wanted registration in the Netherlands. The Registration Committee, established by the Royal Netherlands Society for the Promotion of Medicine , a private body recognized by Dutch law , refused his application, and the Appeals Committee, hearing his appeal, wanted to make a reference regarding the EU rules on the free movement of professionals between MS. Problem: Appeals Committee was not considered as ‘court’ under Dutch law. </li></ul></ul>
  11. 11. <ul><li>IT IS THUS CLEAR THAT BOTH IN THE SECTOR COVERED BY THE SOCIAL SECURITY SYSTEM AND IN THE FIELD OF PRIVATE MEDICINE THE NETHERLANDS SYSTEM OF PUBLIC HEALTH OPERATES ON THE BASIS OF THE STATUS ACCORDED TO DOCTORS BY THE SOCIETY AND THAT REGISTRATION AS A GENERAL PRACTITIONER IS ESSENTIAL TO EVERY DOCTOR WISHING TO ESTABLISH HIMSELF IN THE NETHERLANDS AS A GENERAL PRACTITIONER. </li></ul><ul><li>THEREFORE A GENERAL PRACTITIONER WHO AVAILS HIMSELF OF THE RIGHT OF ESTABLISHMENT AND THE FREEDOM TO PROVIDE SERVICES CONFERRED UPON HIM BY COMMUNITY LAW IS FACED WITH THE NECESSITY OF APPLYING TO THE REGISTRATION COMMITTEE ESTABLISHED BY THE SOCIETY , AND , IN THE EVENT OF HIS APPLICATION ' S BEING REFUSED , MUST APPEAL TO THE APPEALS COMMITTEE … </li></ul><ul><li>IT SHOULD BE NOTED THAT IT IS INCUMBENT UPON MEMBER STATES TO TAKE THE NECESSARY STEPS TO ENSURE THAT WITHIN THEIR OWN TERRITORY THE PROVISIONS ADOPTED BY THE COMMUNITY INSTITUTIONS ARE IMPLEMENTED IN THEIR ENTIRETY . IF , UNDER THE LEGAL SYSTEM OF A MEMBER STATE , THE TASK OF IMPLEMENTING SUCH PROVISIONS IS ASSIGNED TO A PROFESSIONAL BODY ACTING UNDER A DEGREE OF GOVERNMENTAL SUPERVISION , AND IF THAT BODY , IN CONJUNCTION WITH THE PUBLIC AUTHORITIES CONCERNED , CREATES APPEAL PROCEDURES WHICH MAY AFFECT THE EXERCISE OF RIGHTS GRANTED BY COMMUNITY LAW , IT IS IMPERATIVE , IN ORDER TO ENSURE THE PROPER FUNCTIONING OF COMMUNITY LAW , THAT THE COURT SHOULD HAVE AN OPPORTUNITY OF RULING ON ISSUES OF INTERPRETATION AND VALIDITY ARISING OUT OF SUCH PROCEEDINGS . </li></ul>
  12. 12. <ul><li>IT IS THUS CLEAR THAT BOTH IN THE SECTOR COVERED BY THE SOCIAL SECURITY SYSTEM AND IN THE FIELD OF PRIVATE MEDICINE THE NETHERLANDS SYSTEM OF PUBLIC HEALTH OPERATES ON THE BASIS OF THE STATUS ACCORDED TO DOCTORS BY THE SOCIETY AND THAT REGISTRATION AS A GENERAL PRACTITIONER IS ESSENTIAL TO EVERY DOCTOR WISHING TO ESTABLISH HIMSELF IN THE NETHERLANDS AS A GENERAL PRACTITIONER. </li></ul><ul><li>THEREFORE A GENERAL PRACTITIONER WHO AVAILS HIMSELF OF THE RIGHT OF ESTABLISHMENT AND THE FREEDOM TO PROVIDE SERVICES CONFERRED UPON HIM BY COMMUNITY LAW IS FACED WITH THE NECESSITY OF APPLYING TO THE REGISTRATION COMMITTEE ESTABLISHED BY THE SOCIETY , AND , IN THE EVENT OF HIS APPLICATION ' S BEING REFUSED , MUST APPEAL TO THE APPEALS COMMITTEE … </li></ul><ul><li>IT SHOULD BE NOTED THAT IT IS INCUMBENT UPON MEMBER STATES TO TAKE THE NECESSARY STEPS TO ENSURE THAT WITHIN THEIR OWN TERRITORY THE PROVISIONS ADOPTED BY THE COMMUNITY INSTITUTIONS ARE IMPLEMENTED IN THEIR ENTIRETY . IF , UNDER THE LEGAL SYSTEM OF A MEMBER STATE , THE TASK OF IMPLEMENTING SUCH PROVISIONS IS ASSIGNED TO A PROFESSIONAL BODY ACTING UNDER A DEGREE OF GOVERNMENTAL SUPERVISION , AND IF THAT BODY , IN CONJUNCTION WITH THE PUBLIC AUTHORITIES CONCERNED , CREATES APPEAL PROCEDURES WHICH MAY AFFECT THE EXERCISE OF RIGHTS GRANTED BY COMMUNITY LAW , IT IS IMPERATIVE , IN ORDER TO ENSURE THE PROPER FUNCTIONING OF COMMUNITY LAW , THAT THE COURT SHOULD HAVE AN OPPORTUNITY OF RULING ON ISSUES OF INTERPRETATION AND VALIDITY ARISING OUT OF SUCH PROCEEDINGS . </li></ul>
  13. 13. Who may refer? <ul><li>“ Where such a question is raised before any court or tribunal of a Member State , that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.” </li></ul><ul><li>Up to ECJ to decide whether or not a referring body is a court or tribunal </li></ul><ul><li>Categorization under national law is not conclusive </li></ul><ul><ul><li>Broekmeulen: ECJ: no registration = no practice , and only Registration Committee is competent. In case of refusal, Appeals Committee is competent body to decide. Therefore, the ECJ should have the right to give a preliminary ruling. </li></ul></ul><ul><ul><li>Nordsee v Rederei Mond: referring body was arbitrator, appointed by contract between parties. </li></ul></ul><ul><ul><ul><li>In Germany, arbitration was provided for by law (civil procedural law), the arbitrator decides according to law and his decision has the force of ‘res judicata’. </li></ul></ul></ul><ul><ul><ul><li>ECJ: this is not enough; parties are free to choose between ordinary court and arbitration. German public authorities are not obliged to intervene in proceedings, MS has not entrusted its task of fulfilling its task under EU law (Art. 4(3) TEU) to arbitrator, therefore arbitrator in this case is no court or tribunal. </li></ul></ul></ul>
  14. 14. Who may refer? <ul><li>“ Where such a question is raised before any court or tribunal of a Member State , that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.” </li></ul><ul><li>Up to ECJ to decide whether or not a referring body is a court or tribunal </li></ul><ul><li>Categorization under national law is not conclusive </li></ul><ul><ul><li>Broekmeulen: only competent body to decide </li></ul></ul><ul><ul><li>Nordsee v Rederei Mond: no obligation to choose for this forum </li></ul></ul><ul><ul><li>Doris Saltzmann: Court takes account of a number of factors, such as 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 and whether it is independent . </li></ul></ul>
  15. 15. Who must refer? <ul><li>“ Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.” </li></ul><ul><li>Principle: discretion: “…may refer…” </li></ul><ul><li>Exception: obligation: “… shall bring the matter before the Court.” This prevents cases like Koebler (damages) and prevents establishment of body of national case law infringing on EU law: Uniformity of EU law. </li></ul><ul><ul><li>Highest national Courts </li></ul></ul><ul><ul><li>Lower Courts: only when court or tribunal’s decision cannot be subject to appeal in this particular case. </li></ul></ul><ul><ul><ul><li>Costa ENEL : Milano magistrate made reference. Normally his rulings could be appealed, however in case sum involved was too small: no appeal allowed. ECJ admitted reference </li></ul></ul></ul><ul><ul><ul><li>Lyckeskog: court decision could only be appealed after the court of appeal has given a declaration of admissibility. However, appeal is possible, ECJ did not accept reference. When, on examining admissibility, court of appeal has question on interpretation of EU law, he has to refer to ECJ. </li></ul></ul></ul>
  16. 16. Lyckeskog C-99/00 <ul><li>14 The obligation on national courts against whose decisions there is no judicial remedy to refer a question to the Court for a preliminary ruling has its basis in the cooperation established, in order to ensure the proper application and uniform interpretation of Community law in all the Member States , between national courts, as courts responsible for applying Community law, and the Court. That obligation is in particular designed to prevent a body of national case-law that is not in accordance with the rules of Community law from coming into existence in any Member State . </li></ul><ul><li>15 That objective is secured when, subject to the limits accepted by the Court of Justice (CILFIT), supreme courts are bound by this obligation to refer as is any other national court or tribunal against whose decisions there is no judicial remedy under national law (Joined Cases 28/62, 29/62 and 30/62 Da Costa en Schaake [1963] ECR 31). </li></ul><ul><li>16 Decisions of a national appellate court which can be challenged by the parties before a supreme court are not decisions of a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law within the meaning of Article 234 EC. The fact that examination of the merits of such appeals is subject to a prior declaration of admissibility by the supreme court does not have the effect of depriving the parties of a judicial remedy. </li></ul>
  17. 17. Referring in what situation ? <ul><li>Existence of a question concerning the interpretation of EU law (Weatherill: “separation of functions”, p. 179) </li></ul><ul><li>ECJ should not be asked to rule on validity of national law </li></ul><ul><ul><li>Van Gend en Loos : “…The question clearly does not call for an interpretation of the Treaty but concerns the application of the Netherlands customs legislation… which is outside the jurisdiction conferred upon the ECJ…” </li></ul></ul><ul><ul><li>Costa ENEL : “…[Art. 267 TFEU] gives the Court no jurisdiction either to apply the Treaty to a specific case or to decide upon the validity of a provision of domestic law in relation to the Treaty, as it would be possible for it to do under Article ….” </li></ul></ul><ul><ul><li>However: </li></ul></ul><ul><ul><li>ECJ corrects improperly framed references if questions are formulated imperfectly by the national court (Costa ENEL). </li></ul></ul><ul><ul><li>ECJ does not investigate fats of the case and thus does not refuse referral if facts on which case is based are not correct (Schwarze, Case 16/65). Non-interference with decision of national court to refer. </li></ul></ul><ul><ul><li>ECJ does refuse referrals if made for an unjust reason (fabricated case, Novello) </li></ul></ul>
  18. 18. Novello 1 and 2 <ul><li>Novello 1 (Case 104/79) </li></ul><ul><li>Foglia (Italy) sold wine to Novello (France). According to contract, Novello would not have to pay any charges of F or I authorities if they were infringing on EU law. F authorities levied taxes, Novello refused to pay and Foglia sued him before Italian courts. Novello claimed taxes were infringing EU law, court referred case to ECJ. </li></ul>
  19. 19. <ul><li>Novello 1: </li></ul><ul><li>9 IN THEIR WRITTEN OBSERVATIONS SUBMITTED TO THE COURT OF JUSTICE THE TWO PARTIES TO THE MAIN ACTION HAVE PROVIDED AN ESSENTIALLY IDENTICAL DESCRIPTION OF THE TAX DISCRIMINATION WHICH IS A FEATURE OF THE FRENCH LEGISLATION CONCERNING THE TAXATION OF LIQUEUR WINES ; … IN THE COURSE OF THE ORAL PROCEDURE BEFORE THE COURT FOGLIA STATED THAT HE WAS PARTICIPATING IN THE PROCEDURE BEFORE THE COURT IN VIEW OF THE INTEREST OF HIS UNDERTAKING AS SUCH AND AS AN UNDERTAKING BELONGING TO A CERTAIN CATEGORY OF ITALIAN TRADERS IN THE OUTCOME OF THE LEGAL ISSUES INVOLVED IN THE DISPUTE . </li></ul><ul><li>10 IT THUS APPEARS THAT THE PARTIES TO THE MAIN ACTION ARE CONCERNED TO OBTAIN A RULING THAT THE FRENCH TAX SYSTEM IS INVALID FOR LIQUEUR WINES BY THE EXPEDIENT OF PROCEEDINGS BEFORE AN ITALIAN COURT BETWEEN TWO PRIVATE INDIVIDUALS WHO ARE IN AGREEMENT AS TO THE RESULT TO BE ATTAINED AND WHO HAVE INSERTED A CLAUSE IN THEIR CONTRACT IN ORDER TO INDUCE THE ITALIAN COURT TO GIVE A RULING ON THE POINT . THE ARTIFICIAL NATURE OF THIS EXPEDIENT IS UNDERLINED BY THE FACT THAT DANZAS DID NOT EXERCISE ITS RIGHTS UNDER FRENCH LAW … </li></ul><ul><li>11 THE DUTY OF THE COURT OF JUSTICE UNDER ARTICLE 177 OF THE EEC TREATY IS TO SUPPLY ALL COURTS IN THE COMMUNITY WITH THE INFORMATION ON THE INTERPRETATION OF COMMUNITY LAW WHICH IS NECESSARY TO ENABLE THEM TO SETTLE GENUINE DISPUTES WHICH ARE BROUGHT BEFORE THEM . A SITUATION IN WHICH THE COURT WAS OBLIGED BY THE EXPEDIENT OF ARRANGEMENTS LIKE THOSE DESCRIBED ABOVE TO GIVE RULINGS WOULD JEOPARDIZE THE WHOLE SYSTEM OF LEGAL REMEDIES AVAILABLE TO PRIVATE INDIVIDUALS TO ENABLE THEM TO PROTECT THEMSELVES AGAINST TAX PROVISIONS WHICH ARE CONTRARY TO THE TREATY . </li></ul>
  20. 20. <ul><li>Novello 2 </li></ul><ul><li>18 IT MUST IN FACT BE EMPHASIZED THAT THE DUTY ASSIGNED TO THE COURT BY ARTICLE 177 IS NOT THAT OF DELIVERING ADVISORY OPINIONS ON GENERAL OR HYPOTHETICAL QUESTIONS BUT OF ASSISTING IN THE ADMINISTRATION OF JUSTICE IN THE MEMBER STATES . IT ACCORDINGLY DOES NOT HAVE JURISDICTION TO REPLY TO QUESTIONS OF INTERPRETATION WHICH ARE SUBMITTED TO IT WITHIN THE FRAMEWORK OF PROCEDURAL DEVICES ARRANGED BY THE PARTIES IN ORDER TO INDUCE THE COURT TO GIVE ITS VIEWS ON CERTAIN PROBLEMS OF COMMUNITY LAW WHICH DO NOT CORRESPOND TO AN OBJECTIVE REQUIREMENT INHERENT IN THE RESOLUTION OF A DISPUTE . A DECLARATION BY THE COURT THAT IS HAS NO JURISDICTION IN SUCH CIRCUMSTANCES DOES NOT IN ANY WAY TRESPASS UPON THE PREROGATIVES OF THE NATIONAL COURT BUT MAKES IT POSSIBLE TO PREVENT THE APPLICATION OF THE PROCEDURE UNDER ARTICLE 177 FOR PURPOSES OTHER THAN THOSE APPROPRIATE FOR IT . </li></ul><ul><li>19 FURTHERMORE , IT SHOULD BE POINTED OUT THAT , WHILST THE COURT OF JUSTICE MUST BE ABLE TO PLACE AS MUCH RELIANCE AS POSSIBLE UPON THE ASSESSMENT BY THE NATIONAL COURT OF THE EXTENT TO WHICH THE QUESTIONS SUBMITTED ARE ESSENTIAL , IT MUST BE IN A POSITION TO MAKE ANY ASSESSMENT INHERENT IN THE PERFORMANCE OF ITS OWN DUTIES IN PARTICULAR ORDER TO CHECK , AS ALL COURTS MUST , WHETHER IT HAS JURISDICTION ……….. </li></ul>
  21. 21. Novello 1 and 2 <ul><li>Novello 1 (Case 104/79) </li></ul><ul><li>ECJ: “It thus appears that the parties to the main action are concerned to obtain a ruling that the French tax system is invalid…The artificial nature of this expedient is underlined by the fact that the carrier did not exercise its right under French law…”/ </li></ul><ul><li>“ The Court of Justice accordingly has no jurisdiction”. </li></ul><ul><li>Novello 2 (Case 244/80) </li></ul><ul><li>“ [The Court]…does not have jurisdiction to reply to questions of interpretation which are submitted to it within the framework of procedural devices arranged by the parties in order to induce the Court to give its views on certain problems of EU law which do not correspond to an objective requirement inherent in the resolution of the dispute”. </li></ul>
  22. 22. Referring in what situation ? - CILFIT- <ul><li>FACED WITH THOSE CONFLICTING ARGUMENTS , THE CORTE SUPREMA DI CASSAZIONE REFERRED TO THE COURT THE FOLLOWING QUESTION FOR A PRELIMINARY RULING : </li></ul><ul><li>4 “DOES [Art. 267(3) TFEU], …, LAY DOWN AN OBLIGATION SO TO SUBMIT THE CASE WHICH PRECLUDES THE NATIONAL COURT FROM DETERMINING WHETHER THE QUESTION RAISED IS JUSTIFIED OR DOES IT , AND IF SO WITHIN WHAT LIMITS , MAKE THAT OBLIGATION CONDITIONAL ON THE PRIOR FINDING OF A REASONABLE INTERPRETATIVE DOUBT?”.......... </li></ul><ul><li>8 IN THIS CONNECTION , IT IS NECESSARY TO DEFINE THE MEANING FOR THE PURPOSES OF COMMUNITY LAW OF THE EXPRESSION ' ' WHERE ANY SUCH QUESTION IS RAISED ' ' IN ORDER TO DETERMINE THE CIRCUMSTANCES IN WHICH A NATIONAL COURT OR TRIBUNAL …. IS OBLIGED TO BRING A MATTER BEFORE THE COURT OF JUSTICE …… </li></ul><ul><li>10 SECONDLY , IT FOLLOWS FROM THE RELATIONSHIP BETWEEN [Art. 267 (2) and (3) THAT THE COURTS OR TRIBUNALS REFERRED TO IN THE THIRD PARAGRAPH HAVE THE SAME DISCRETION AS ANY OTHER NATIONAL COURT …TO ASCERTAIN WHETHER A DECISION ON A QUESTION OF COMMUNITY LAW IS NECESSARY TO ENABLE THEM TO GIVE JUDGMENT….. </li></ul><ul><li>16 FINALLY , THE CORRECT APPLICATION OF COMMUNITY LAW MAY BE SO OBVIOUS AS TO LEAVE NO SCOPE FOR ANY REASONABLE DOUBT AS TO THE MANNER IN WHICH THE QUESTION RAISED IS TO BE RESOLVED . BEFORE IT COMES TO THE CONCLUSION THAT SUCH IS THE CASE , THE NATIONAL COURT OR TRIBUNAL MUST BE CONVINCED THAT THE MATTER IS EQUALLY OBVIOUS TO THE COURTS OF THE OTHER MEMBER STATES </li></ul>
  23. 23. Referring in what situation ? - Act Clair - <ul><li>In case NO prior ECJ decision exists, referral is not necessary in case the right interpretation of the Treaties is so clear that no reference to the ECJ is required. </li></ul><ul><ul><li>CILFIT : “…finally, the correct application of EU law may be so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved.” The ‘act clair’ doctrine may only be used when: </li></ul></ul><ul><ul><ul><li>Matter is equally clear to courts of MS (in all languages of the EU) </li></ul></ul></ul><ul><ul><ul><li>Matter is equally clear to the ECJ (objective, evolution of EU law to date) </li></ul></ul></ul><ul><ul><li>Courts are still allowed to refer case to ECJ </li></ul></ul><ul><ul><li>CILFIT used by UK courts to justify decision not to refer to ECJ; referral considered as infringement of UK sovereignty </li></ul></ul><ul><ul><ul><li>Koebler: State liability for wrong decision / non-referral to ECJ </li></ul></ul></ul><ul><ul><ul><li>Enforcement action under Art. 258 TFEU (“ If the Commission considers that a Member State has failed to fulfill an obligation under the Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations. ”) </li></ul></ul></ul>
  24. 24. Referring in what situation ? <ul><li>Precedent : in case of prior ECJ decision, referral only in case of a necessity , a ‘question regarding the interpretation of the Treaties’ necessary to reach a decision </li></ul><ul><li>in case of MS violating Treaties: </li></ul><ul><ul><li>Costa ENEL : “…[Art. 267 TFEU] always allows a national court, if it considers it desirable, to refer questions of interpretation to the Court again…The questions of interpretation posed in this case are identical with those settled as above and no new factor has been presented to the Court. In these circumstances the Tariefcommissie must be referred to the previous judgment.” </li></ul></ul><ul><ul><li>CILFIT: “…in all circumstances , national courts and tribunals remain entirely at liberty to bring a matter before the Court of Justice if they consider it appropriate.” </li></ul></ul>
  25. 25. <ul><li>THE MAIN PURPOSE OF THE POWERS ACCORDED TO THE COURT BY ARTICLE 177 IS TO ENSURE THAT COMMUNITY LAW IS APPLIED UNIFORMLY BY NATIONAL COURTS . UNIFORM APPLICATION OF COMMUNITY LAW IS IMPERATIVE NOT ONLY WHEN A NATIONAL COURT IS FACED WITH A RULE OF COMMUNITY LAW THE MEANING AND SCOPE OF WHICH NEED TO BE DEFINED ; IT IS JUST AS IMPERATIVE WHEN THE COURT IS CONFRONTED BY A DISPUTE AS TO THE VALIDITY OF AN ACT OF THE INSTITUTIONS . </li></ul><ul><li>12 WHEN THE COURT IS MOVED UNDER ARTICLE 177 TO DECLARE AN ACT OF ONE OF THE INSTITUTIONS TO BE VOID THERE ARE PARTICULARLY IMPERATIVE REQUIREMENTS CONCERNING LEGAL CERTAINTY IN ADDITION TO THOSE CONCERNING THE UNIFORM APPLICATION OF COMMUNITY LAW . IT FOLLOWS FROM THE VERY NATURE OF SUCH A DECLARATION THAT A NATIONAL COURT MAY NOT APPLY THE ACT DECLARED TO BE VOID WITHOUT ONCE MORE CREATING SERIOUS UNCERTAINTY AS TO THE COMMUNITY LAW APPLICABLE . </li></ul><ul><li>13 IT FOLLOWS THEREFROM THAT ALTHOUGH A JUDGMENT OF THE COURT GIVEN UNDER ARTICLE 177 OF THE TREATY DECLARING AN ACT OF AN INSTITUTION , …. , TO BE VOID IS DIRECTLY ADDRESSED ONLY TO THE NATIONAL COURT WHICH BROUGHT THE MATTER BEFORE THE COURT , IT IS SUFFICIENT REASON FOR ANY OTHER NATIONAL COURT TO REGARD THAT ACT AS VOID FOR THE PURPOSES OF A JUDGMENT WHICH IT HAS TO GIVE . </li></ul><ul><li>14 THAT ASSERTION DOES NOT HOWEVER MEAN THAT NATIONAL COURTS ARE DEPRIVED OF THE POWER GIVEN TO THEM BY ARTICLE 177 OF THE TREATY AND IT RESTS WITH THOSE COURTS TO DECIDE WHETHER THERE IS A NEED TO RAISE ONCE AGAIN A QUESTION WHICH HAS ALREADY BEEN SETTLED BY THE COURT WHERE THE COURT HAS PREVIOUSLY DECLARED AN ACT OF A COMMUNITY INSTITUTION TO BE VOID . THERE MAY BE SUCH A NEED IN PARTICULAR IF QUESTIONS ARISE AS TO THE GROUNDS , THE SCOPE AND POSSIBLY THE CONSEQUENCES OF THE INVALIDITY ESTABLISHED EARLIER . </li></ul>
  26. 26. <ul><li>Precedent in case of validity of EU law: </li></ul><ul><ul><li>ICC: “The main purpose of …[Art. 267 TFEU]…is to ensure that EU law is applied uniformly by national courts…It follows from the very nature of such a declaration that a national court may not apply the act declared void without once more creating serious uncertainty as to the EU law applicable…this does not however mean that national courts are deprived of the power given to them by Article 267 TFEU.” </li></ul></ul><ul><ul><li>Foto-Frost: “Since [Art. 263 TFEU] gives the Court exclusive jurisdiction to declare void an act of an EU institution ,… where the validity of an EU institution is challenged before a national court the power to declare the act invalid must also be reserved to the ECJ. </li></ul></ul><ul><li>Acts declared void by ECJ may not be applied by national court anymore </li></ul><ul><li>Power to declare EU acts void is exlusively the ECJ’s </li></ul><ul><li>National courts remain competent to refer questions on validity of EU law to ECJ </li></ul>
  27. 27. PPU: procedure preliminaire d’urgence <ul><li>“ If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay”. </li></ul><ul><li>Newly inserted by Lisbon Treaty </li></ul><ul><li>Urgent preliminary reference procedure when persons in custody are involved (Preliminary reference procedure concerning ‘Area of Freedom, Security and Justice’, Art. 67 ff. TFEU) </li></ul><ul><ul><li>Asylum, immigration and external border control (Art. 68 TFEU) </li></ul></ul><ul><ul><li>Judicial cooperation in civil and criminal matters </li></ul></ul><ul><ul><li>Police cooperation </li></ul></ul><ul><ul><li>First case: Rinau (Case C-195/08), reference lodged on 14 May 2008, first hearing on 26 June 2008, ruling on 11 July 2008, before Lisbon Treaty (based on Council Decision 2008/79): dealing on the question whether or not to return child to one of its parents. </li></ul></ul><ul><ul><li>Recently: McB (C-400/10 PPU), again on child custody, involving Charter of Human Rights of the EU. </li></ul></ul>
  28. 28. Referring… and then ? <ul><li>Interpretation or application? </li></ul><ul><ul><li>Art. 267 TFEU makes ECJ competent to interpret EU law, application of the interpretation to the facts of the case is left to national court: different from appellate / federal system. </li></ul></ul><ul><ul><li>In practice, rulings of ECJ are detailed, leaving the national court no discretion; national courts execute ECJ’s ruling (Marleasing: Directive exhaustively listed cases for annulment of articles of a company) </li></ul></ul><ul><ul><li>ECJ on it’s way to become Federal Court? </li></ul></ul>

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