Dorsch Consult guidelines: Permanent; Established at law;
Compulsory Jurisdition; Hearings where all parties present and
heard; Applies rule of law; Independent
Brokmeulen
Not all criteria need be satisfied
Nordsee
Is the decision on a point of EU law necessary? (CILFIT)
CILFIT criteria: Q of EU law NOT necessary where:
i) Irrelevant to case conclusion ii) Previously dealt w/
by ECJ (but would not preclude ref: Da Costa) iii)
Application of EU law obvious
Is the court of Mandatory or Permissive jurisdiction
Mandatory jurisdiction = no right of appeal
AND decisions binding (Costa v ENEL)
MUST make Art 267 Ref IF court considers decision
on Q of EU law necessary to enable judgement
Permissive jurisdiction = court w/ national right of appeal
MAY refer Art 267 Ref but not have to
Should the court refer? Level of Uncertainty
required before Ref made
ECJ Guidance
Refer if no previous case law
National issues should be resolved first
(Irish Creamery)
Higher Court can NOT prevent referral from
lower court (Rheinmuhlen)
UK Guidance
International Stock Exchange: Court
recognise use should be made of ECJ -
greater experience of EU law
Trinity Mirror: UK courts should show greater self-restraint when
making ref (so ECJ not collapse under case load)
Ref general importance, promoting uniform
application of EU Law - refer
Ref specific importance i.e. no application
beyond case - NOT refer
National court can not declare EU
law invalid (Foto-Frost)