Preliminary References:
Enables national courts to refer to the CoJ questions of Union law which they must decide before giving judgement e.g. the meaning of certain procedures. Courts can only answer questions which have been considered in previous case law.

Article 267 TFEU: Preliminary rulings procedure- requires the court to act with minimum delay to bring a remedy for any case which has no remedy at national law.
This ensures the uniform application of Union law.

This uniform application depends upon National court's willingness to make references. Despite the procedural interference applying for a preliminary reference causes, many national courts comply due to the sheer persuasive force of the ECJ's judgement's and the empowerment that a preliminary ruling entails (gives them greater jurisdiction).

Over half of preliminary references in 2012 were from national courts, most of whom were from Germany, Italy and France. This may due to the size of the county, the period of time they have been submitting preliminary references. Germany is believed to have a larger amount of preliminary references because the EU treaties have made a greater impact upon German Law. Consequently German law has made more of an impact upon Union law (German law submits reasons why a preliminary reference should be answered in a certain way. This is bound to influence further decisions of the CoJ).

The interpretation of treaties
the validity of acts of Union/offices/bodies/agencies
Whether a provision of Union law has Direct Effect

Second References:
Matters of Union law may be bought to the ECJ even though the fact appears to have already been settled by the ECJ- a second reference can be made for further clarification (can be in the same proceedings).

Pretore di Salò: a second reference may be justified when the national court encounters difficulties applying the judgement, when it refers a fresh question of law or when new considerations may result in a different answer from the ECJ.

Article 267 allows any court or tribunal of a member state to submit a preliminary reference

Syfair: Whether body making a reference is a court or tribunal under Article 267 depends upon:

Whether the body is established by law
Whether it is permanent
Whether its jurisdiction is compulsory

Vaassen: Reference by dutch social security tribunal gave non-binding opinions and was not considered a court under national law. However, it was entitled to give preliminary references as it constituted to a tribunal under Article 267 as it was a permanent body whom heard adversarial disputes.

Corbiau: Tax tribunal was held to not constitute to a court or tribunal under Article 267 because it was connected with one of the parties to the dispute.

Note: The Court of Justice is not hierarchical to national courts. It compliments/co-operates with national law. Preliminary references do not involve overruling an act but merely commenting upon it.

Resisting a Preliminary Ruling:
Under Article 267 it is for the National court to disapply national law which conflicts with Union law if the ECJ rules it so.

In some cases the ECJ's ruling will be un-preferable to national law due to:

A conflict between Union law and National values
where the national court thinks the CoJ has exceeded its jurisdiction
where the national court dislikes the CoJ's ruling.

Arsenal Football Club: Arsenal prevented the defendant from selling Arsenal souvenirs outside Arsenals' ground.The English high court submitted a preliminary reference on trademarks. The ECJ held that there was an infringement. However, the High Court gave judgment for the defendant based upon findings of fact in the case and so refused to follow the ruling of the ECJ on the basis that the ECJ had exceeded its jurisdiction. This was later overturned in the Court of Appeal.

Samex: Article 267 shows inferior national courts have the option as to whether they want to make a preliminary ruling, however, the ECJ has a detailed an intimate knowledge of the Union and it's treaties therefore it would be easier and more efficient to submit any questions to the ECJ.

HP Bulmer: Lord Denning laid down guidelines as to how the national court should exercise their discretion liberally to make a preliminary ruling under Article 267

R v Stock Exchange: If the national court has any real doubt it should ordinarily refer

Rheinmuhlen: A national court cannot be deprived of it's power to make a reference by the decisions of superior courts. Denning's guidelines could not bind lower courts.

Krizan: A preliminary from Slovakia challenged administrative decisions for a waste landfill site. The constitutional court overturned the judgement of the supreme court in order for a new ruling to be made. However, the constitutional court had made no reference to the ECJ. The supreme court was uncertain and so made a preliminary reference to the ECJ whom ruled that they were not bound by their superior court and could submit their own references.

Refusing a Preliminary Ruling:
Cipara: The court may refuse to give a preliminary ruling where:

It is obvious that the interpretation of Union law depends on the facts of the situation
the problem is hypothetical
the court does not have the factual or legal evidence to give a useful answer

Vajnai: A demonstrator was convicted of displaying a communist symbol which was an offence in Hungary, but not in other member states. The court held they had no discretion to answer as this case was not relevant to any other member state proceedings- the interpretation depended on the facts.

Melicke: Melicke was a German lawyer whom had written a book, he bought a share in the company in order to fall into litigation for the means of gaining contact with the ECJ. The court will not answer questions which are manifestly irrelevant or where there is no real dispute between the parties.

Mandatory References:
A Top national court is obliged to refer a matter of uncertainty for a preliminary ruling.

Costa v ENEL: There can be no appeal from a court of last resort therefore any issues of uncertainty must be submitted to the ECJ for a preliminary ruling.

Kobler: If non-compliance of a top court under Article 267 deprives a party of his rights under union law, the state may be liable. If the court mistakenly (not deliberately) believes that the CILFIT criteria has been met, it will not be liable as it has acted in "good faith".

Chiron: If a court of appeal refuses to allow a preliminary ruling there is a breach of remedy as the possibility of making an application for preliminary ruling to the Supreme court constitutes to a remedy. The court of appeal cannot re-open a case to which a Supreme court has refused to make a preliminary reference to.

Lyckeskog: An appeal was made from the court of appeal for western Sweden. The court was not a court of last resort or a top court as it could further appeal to the Supreme Court.

Krizan: the supreme court is not only permitted to make a reference but was required in order to prevent the possibility of potential infringements- a preliminary reference was not a remedy. If the Commission had bought infringement proceedings to the ECJ upon a member state and are settled before they reach the court, a national court cannot submit a preliminary reference for an issue involving settled infringement proceedings.

IATA: Article 267 is not a means of remedy to a party of a case. The national court must think that the issue requires a preliminary reference as opposed to the parties themselves believing it is necessary

CILFIT: Supreme national courts are the same as lower national courts in deciding whether a question of Union Law needs to be considered. However, inferior national courts can decide whether to refer whereas supreme national courts must refer. Even where a question of Union Law is needed for judgement a Supreme court may not have an obligation to refer for a reference in certain circumstances:

Previous similar decisions have already settled the issue (does this mean the nature and context does not matter?)
Where the answer is so obvious it leaves no reasonable doubt (Must be equally obvious to courts of other member states and to the CoJ)
Characteristic features of Union law must be taken into account:

Different language drafts,
Union law has same terminology to common Law but has different meanings,
It must be interpreted in the context and as a whole (Van Gend- Spirit, general scheme, wording and scope of the treaty )

This is considered to be very strict because top courts are comprised of highly intellectual and experienced judges unlike national courts. Supreme courts should not be obliged to submit for a preliminary ruling whereas national courts can decide upon issues of Union Law themselves. Additionally, how can there be a uniform application if different language drafts are to be considered? The test is unworkable.

References on Validity of Union Acts (CANNOT ASK FOR VALIDITY OF TREATY):
TWD: A private applicant who fails to challenge a Union act even though the could have done so (it was of direct and individual concern), he cannot challenge the Act later on in a National Court once it has been implemented because they failed to bring annulment proceedings when they could have done.

Pringle: The Act is final once the time-limit for annulment has passed.

Annulment is more suitable for questioning the validity of Union Acts? Preliminary acts appear to be an alternative means.

UPA: The ECJ imposed a duty upon National Courts to apply national law in a way which enabled claimants the validity of national acts (Article 19(1) TEU)

British American Tobacco: The applicants applied for a judicial review of the intention and obligation of the UK government to implement a directive of tobacco products in the future.
This was admissible under national law following UPA which required national courts to be open to such challenges.

Foto-Frost: Where a question of interpretation is concerned the inferior national court does not have to refer but they must for questions of validity- they can declare an act as valid but cannot declare an act as invalid and so must refer. By declaring an act as invalid one is declaring an act does not apply at all whereas issues of interpretation understands that an act applies but there is uncertainty around how.

Gaston Schul: Must be made even by an inferior national court in order to reach a judgement. CILFIT only applies to questions of interpretation. The threat to uniformity of applying CILFIT to issues of validity is too great to be allowed.

Zuckerfabrik: The obligation to refer questions of validity to the court of justice may be postponed where interlocutory proceedings occur. If a national measure under an invalid Union measure is suspended urgently, the national court may do so without a preliminary reference if:

The court has serious doubts about the validity of a measure.
A reference is made to the court on the validity
there is urgency and threat of serious damage to the applicant
the Union's interests are taken into account.

ABNA: If an act is suspended in one member state, the other member states are not entitled to suspend it in theirs.

The Effect of a Preliminary Ruling:
Benedetti v Munari: A ruling on the interpretation by the CoJ is binding upon the national court as precedence.

It clarifies the meaning and scope of the rule and so may be applied to national courts in legal relationships arising before the ECJ's judgement.

Defrenne: The court may limit the effect of it's ruling on past transactions depending upon public and private legal certainty which make it impossible to re-open the case.

Rules of Procedure:
Standard- Article 267
Urgent- Article 104 b

	Created by cadhla_corrigan almost 10 years ago

LLB LFEU (7. Preliminary Rulings) Note on Preliminary Rulings, created by cadhla_corrigan on 10/05/2014.

Preliminary Rulings