Preliminary References- Art. 267 TFEU

Art. 267 TFEU: 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.
1. Concept of court and tribunal
  1. involves national Courts and tribunals as well as CJ
  2. - must exercise judicial function
    1. Broekmeulen v Huisarts Registratie Commissie A Dutch Appeals Committee for General Medicine (not regarded as a court or tribunal under Dutch law) The ECJ noted it enjoyed significant degree of official recognition; carried out a public function; and decisions were delivered after an adversarial procedure and were considered to be final.
      1. Factors that the Court takes into consideration: • The degree of official recognition enjoyed by the national body. • The independence and permanence of the body.( Vaassen) • The power to make binding decisions on legal rights and obligations (Vaassen).
      2. Nordsee: a private arbitrator could not be considered a court or tribunal
      3. In Corbiau, the ECJ held that the Director of Taxation for Luxembourg could not be considered a court or a tribunal - because it was not independent from the executive
  3. theories may be used to identify national courts - obligation to refer: abstract ; or concrete theory.
2. distinguishes between: • The national courts and tribunals which have an obligation to refer to the Court of Justice, i.e. courts or tribunals against whose decisions there is no remedy; and • The national courts and tribunals which have discretion to refer to the Court of Justice.
  1. Limits to the obligation to refer imposed on courts: CILFIT – ECJ held that there are instances where courts against whose decisions there is no remedy are NOT under the obligation to refer when
    1. The ECJ has already dealt with the question at issue.
    2. The “acte clair” doctrine : international treaties need not be referred to the government for interpretation if the meaning is clear. [problems with a.c see Henn]
    3. The question does not have to be strictly identical to the question already considered by The ECJ.
3. Jurisdiction of the ECJ
  1. National courts have no jurisdiction to declare that acts of EC institutions are invalid. Torfaen and Stoke CC and Foto v Frost
4. Changes brought by the Lisbon Treaty: Article 275 TFEU Article 67 Lisbon Treaty

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Preliminary References- Art. 267 TFEU

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