1Weatherill Stephen, Law and Values in the European Union(Oxford University Press 2016) 2Craig,P. and De Búrca, G., EU Law, 4th edn. 2008, OUP,p4603 Craig, Paul;de Búrca, Gráinne, EU law: text, cases, and materials (5th ed.).
Oxford: Oxford University Press (2011) p. 482.4Tridimas Takis, Knocking on Heaven’s Door: Fragmentation, Efficiency and Defiance in the PreliminaryReference Procedure,(2003) CMLRev p115Kirk, Dr. Ewan, EU Law, 5th edn (2017) p836Article 267 TFEU, paragraph 17Article 267 TFEU, paragraph 18Kirk, Dr. Ewan, EU Law, 5th edn (2017) p839Arsenal Football Club v Reed 2001 2 CMLR 23. Highlighted that the CJEU had no place todecide the outcome of the case, it is only able to provide interpretation toallow the national courts to decide: “outside the powers of the Court ofJustice under Article 267. He therefore applied what he saw as interpretation,and disregarded anything he considered to be application to the facts.”10Craig, Paul; De Búrca, Gráinne, EU Law: Text, Cases and Materials (3rd edn) (2003)Oxford University Press, p18211Article 12 Treaty of Rome (now replaced by Article 30 TFEU)- “Member States shall refrain from introducing between themselves any newcustoms duties on imports and exports or any charges having equivalent effect,and from increasing those which they already apply in their trade with eachother.
“12Tridimas, Takis, Knocking on Heaven’sDoor: Fragmentation, Efficiency and Defiance in the Preliminary ReferenceProcedure, (2003) CMLRev. Pg 1113 Kirk, Dr. Ewan, EU Law, 5th edn (2017) p8914CaseC-54/96 Dorsch Consult Ingenieurgesellschaft v Bundesbaugesellschaft Berlin,paragraph 315Kirk, Dr. Ewan, EU Law, 5th edn (2017) p9016Case 138/80 Re Jules Borker 1980 ECR 1975. The CJEU decided that is was not’handling a lawsuit which it has the statutory function to decide.
’17Case 102/81 Nordsee Hochseefischerei GmbH 1982 ECR 1095. CJEU stated it wasnot a ‘court or tribunal’ as it was a private agreement and so the publicelement was missing. Without the public element, it was not considered a court.18Kirk, Dr. Ewan, EU Law, 5th edn (2017) p91:”Where such a question is raised before ant court or tribunal of a MemberState, that court or tribunal may,…, request the Court to give a rulingthereon.”19Kirk, Dr. Ewan, EU Law, 5th edn (2017) p9220Case 244/80 Foglia v Novello 1981 ECR 304521Kirk, Dr.
Ewan, EU Law, 5th edn (2017) p92:”Where any such question is raised in a case pending before a court or tribunalof a Member State against whose decisions there is no judicial remedy undernational law, that court or tribunal shall bring the matter before the Court.”22Kirk, Dr. Ewan, EU Law, 5th edn (2017) p9623Tridimas Takis, Knocking on Heaven’s Door: Fragmentation, Efficiency and Defiance in the PreliminaryReference Procedure,(2003) CMLRev p1224Arnull, A. Reflections on JudicialAttitudes at the European Court, ICLQ. (1985) p3425Chalmers, D.; Davies, G.; Monti, G. EuropeanUnion Law: Cases and Materials.
Cambridge: Cambridge University Press (2010)p17726Case C-224/01, Gerhard Ko?bler v. Republik O?sterreich 2003 ECR27Weatherill Stephen, Law and Values in theEuropean Union (Oxford University Press 2016)28Opinion of Advocate General Léger in Case C-224/01, Gerhard Ko?bler v. RepublikO?sterreich 2003 ECR paragraph 14729Kirk, Dr. Ewan, EU Law, 5th edn (2017) p9530Tridimas, Takis, Knocking on Heaven’sDoor: Fragmentation, Efficiency and Defiance in the Preliminary ReferenceProcedure, (2003) CMLRev. Pg 1231Cases28-30/62 Da Costa en Schaake NV v Nederlandse Belastingadministratie 1963 ECR31.
The CJEU decided that a national court of last instance was under noobligation to make a reference where the question raised is almost identical toone which had already been answered.32Kirk, Dr. Ewan, EU Law, 5th edn (2017) p9633Arsenal Football Club v Reed 2001 2 CMLR 23. It is not the place of the CJEUto decide the ruling on the case, only to provide interpretation to answer thenational courts’ question.
34Horspool, Margot, Humphreys,Matthew, Wells-Greco, Michael, EuropeanUnion Law, 9th edn, p7535Jacobs, Francis G., EuropeanUnion Law Review: Recent and Ongoing Measures to Improve the Efficiency of theEuropean Court of Justice, (2004), p823Addressing Weatherill’s statement,the preliminary ruling procedure is crucial to the development of European lawproviding key principles used to establish the legal system of the EuropeanUnion. Even so, there are still issues surrounding mandatory and discretionaryreferences as well as what constitutes a court and tribunal. Additionally, around 2/3rd’s ofthe cases that are decided by the CJEU are in response to PreliminaryReferences34leaving the Court overwhelmed with referrals.
This continuous growth couldlengthen the process and possibly lead to poor quality in the rulings as theCourt has less time in overseeing the development of EU law “some cases will be more complex thanothers and will take longer to resolve.”35Once the CJEU has answered thequestions of the national court, it is down to that court to follow theguidance of the CJEU and apply it to the relevant case. There is a broadobligation the national courts must have for the CJEU and Member States have a”general obligation under Article 4(3) of the TEU to give effect to EU law ingeneral.”32It is not the role of the CJEU to apply the ruling to the facts, the nationalcourt will have to do this33and the case must still be active until the matter returns from the CJEU.There are certain circumstanceswhere the national court can refuse a referral to the CJEU.
This is importantwhen looking at if the court was one of last instance under Article 267(3).These courts may refuse a reference under the acte clair principle. This Frenchlaw term means that the law is clear and does not need interpreting: “Ifsomething is acte clair, then there is no reason to ask for clarification fromthe CJEU, and no question for the CJEU to answer.”29Professor Tridimas argues that the principle gives national courts a creativerole in maintaining and shaping Community Law. He also comments that “Acteclair is an indication of maturity in the development of the Community legalorder”30and it allows the CJEU to establish the normative value of its rulings as seenin Cases 28-30/62 Da Costa en Schaake NV v Nederlandse Belastingadministratie1963 ECR 31.31 Althoughthis principle removes cases from the CJEU that could be considered a waste oftime if the provision is so obvious, it must be used with caution as it couldlead to discrepancies within interpretation.
Asfor state liability, the ruling in Case C-224/01 Gerhard Köbler26supports Weatherill’s statement of preliminary ruling’s creating “many of the Court’smost heroic judgments.”27It opened the question of whether a state could be held liable under EU lawwhen a national court of last resort “infringed EU law by refusing to refer acase under Article 267 TFEU.”28As a judicial system could infringe EU law, this was a major development.
There are exceptions to Article267(3) known as the CILFIT principle created in Case 283/81 CILFIT and others vMinistero Della Sanità 1982 3415. The Court considered that it would not benecessary to make a reference where “the question of EU law is irrelevant; theprovision has already been interpreted by the ECJ (now CJEU); the correctapplication of EU law is so obvious as to leave no room for reasonable doubt.”22The CILFIT case makes it clear that it is the national court’s job to make areference to the CJEU and still can find grounds to refuse making a reference. ProfessorTridimas believes the case marked an important stage in developing therelationship between the CJEU and the national courts by introducing the acte clairdoctrine: “The doctrine promoted the process of federalization of the judicial system.”23Some commentators also argue that the exceptions presented in the CILFITjudgment have provided circumstances where some individuals may not have accessto the CJEU, creating a gap in judicial protection.
24Additionally, Professor Chalmers believes the CILFIT case has given nationalcourts more powers to make decisions in a “highly distorted way.”25As for National court compulsoryreferences, it is essential the national court refers questions to the CJEU asstated in Article 267(3) TFEU.21This means the national court must make a reference to the CJEU if there arequestions of EU law that need answering and there is no right of appeal. Wherea question is raised in a court which has no ability to appeal, it is known asa court of last instance and that question must be referred to under thepreliminary ruling procedure. There are theories focusing on courts of lastinstance; The Concrete Theory (the court of last instance is one from whichthere is no appeal in this case) andthe Abstract Theory (the court of last instance is the only one from whichthere is never an appeal from this court).
Initially, UK courts preferred theAbstract Theory as it meant the only court that was under an obligation torefer questions to the CJEU was the House of Lords. However, the CJEU favourthe concrete theory seen in the Case 6/64 Costa v ENEL. Over time, the UKjudiciary have opted to side with the CJEU’s approach in order for bettercooperation highlighted in the case of Hagen v Fratelli 1980 3 CMLR 253 at255. However, Article 267 is still separated into mandatory and discretionaryreferences which could cause difficulty in the development of this procedure.
Whenever a question is raised in national courtsregarding EU law, they have a choice on whether to refer it to the CJEU asdefined in Article 267(2) TFEU.18Although the decision for interpretation lies with the national court, it mustbe one of genuine importance to give a ruling on a case. This was seen in thecase of Commissioners of Customs and Excise v Samex Aps 1983 3 CMLR 194 whereLord Bingham pointed out that where a party was attempting to use Article 267as a delay tactic, “this would justify the Court’s refusal to make a referenceto the CJEU.”19 Fordiscretionary references, although the national court does not have to make areference to the CJEU, it must clearly explain why they are not doing so.
20Additionally, if the national court does decide to refer to the CJEU, they makea preliminary judgment concluded the questions they wish to ask the EuropeanCourt and then make their final judgments once the CJEU returns their referenceback with answers to their questions. It does not matter when the reference ismade as it can be a lengthy process as long as the case is still active as seenin Case 35/76 Simmenthal v Amministrazione delle Finanze dello Stato 1976 ECR1871.However, the requirements set out in the Dorschcase are not absolute as highlighted in Broekmeulen v Huisarts RegistratieCommissie 1981 ECR 2311. In this case, the CJEU recognised the appealscommittee as a court despite Dutch law not recognising it. The CJEU believed itto have all the qualities necessary for a body to be considered a Court for thepurposes of EU law: “it operates with the consent of the public authorities andtheir cooperation, and…after an adversarial procedure, delivers decisions whichare recognised as final.”15The Dorsch case implemented a functional approach to determine whethersomething falls within the scope of ‘court or tribunal.
‘ This functionalapproach allows more bodies to refer their cases to the CJEU even if they arenot actually a court or tribunal. This opens different ideas to EU law withmore rulings taking place clarifying ambiguous law that might not have beenlooked at before. It can also reduce appeals if the area of law has been lookedat before showing advancements within the CJEU. What constitutes a court ortribunal is a matter of EU law and despite numerous refusals to accept domestictribunals16and arbitrators17,the Court have a wide interpretation when using Article 267 increasing the timefor the Court to answer preliminary ruling to almost two years in some cases.This leads to an overwhelmed Court. Professor Tridimas comments that “At an early stage, in an effort toencourage the propensity of national courts to think federal, it adopted a widedefinition of the term ‘court or tribunal.'”12Article 267 makes a reference to ‘any court or tribunal.’ The issue here isestablishing what either of these mean as they are not clearly defined in theArticle.
It is quite clear that courts within the main judicial body areaccounted for in this definition but there are problems if other courts ortribunals wish to go through the preliminary ruling procedure as they may berefused. According to Dr Kirk, a court or tribunal should “have a judicial function,have independence from the parties concerned; and be recognised by the Statefor its decision-making function.”13In Case C-54/96 Dorsch Consult Ingenieurgesellschaft v BundesbaugesellschaftBerlin, they considered what the EU considers to be a court or tribunal whichincludes permanence, independence from the parties as well as performance of ajudicial function.14This was also affirmed in Case C-17/00 De Coster v Collège des Bourgmestre et Échevins deWatermael-Boitsfort 2001 ECR. One of the CJEU’s landmark judgmentsestablished the doctrine of direct effect with Craig and De Búrca stating “The ECJ first articulated its doctrine of directeffect in 1963 in what is probably the most famous of its ruling,”10showing the importance preliminary rulings have on the European Union. Case26/62 Van Gen en Loos v Nederlandse Administratie der Belastingen 1963 ECRwas a result of the preliminary ruling procedure that was a violation ofArticle 12 Treaty of Rome (now replaced by Article 30 TFEU).11 This case questioned theclose link between direct effect and supremacy which was not asserted untilCase 6/64 Flaminio Costa v ENEL 1964 ECR 585. As the case had a uniquenature, this encouraged the CJEU to construct the supremacy principle with thecase being a challenge against the Court’s authority.
The supremacy principleis essential to the uniformity of EU law along with direct effect as they bothprovide a purpose that coincides with Article 267 further highlighting itsimportance. Although both principles are dependent from the preliminary rulingprocedure, they implement key requirements such as domestic provisions beingunable to override EU law. Although the court does not choosethe questions and is unable to influence the national courts in its decisions,it is able to decide whether a question is invalid and can do this in variousways. One example is seen in Case 13/68 Salgoil SA v Italian Minister ofForeign Trade 1968 ECR 453 where the question must be significant for thenational court to give a judgment.
Another example is in Case 244/80 Foglia vNovello (No.2) 1981 ECR 3045 on the basis that the question must not behypothetical. In this case, the CJEU (formerly the ECJ in this case), refused areference deciding that the proceedings had created a synthetic situation tohave a question answered. A limitation of the CJEU would be that they can onlyinterpret Treaty’s, not national law seen in the case of Flaminio Costa v ENEL 1964 ECR 585. This may limittheir interpretation when the national court’s need a question answered whichcould result in poor ruling. Cooperation between the courtsof Member States and the CJEU is a fundamental, underlying element of Article267. This cooperation needs to be maintained by the CJEU by interpretingmatters of European law which is then applied consistently throughout the EuropeanUnion. This is the role of the CJEU who answer questions on the “interpretationof the Treaties”6and questions the “validity/interpretation of Acts of the Institutions.
“7As seen in the Arsenal Football Club v Reed 2001 2 CMLR 23 case, the CJEU cannotproactively deal with matters itself under a “strict policy ofnon-interference.”8The Court goes no further than answering questions put to it by national courtsand has no involvement with the application of their provided answers.9A preliminary ruling is arequest made by a court or tribunal of a European Union Member State to theCJEU to interpret a point of EU law which is necessary for the national courtto give judgment. EU preliminary rulings can only be made by the CJEU who makethe final decision. The Treaty of Lisbon provided that jurisdiction may beconferred on the General Court, but this has not been put into effect.
3This procedure is to ensure the uniform application of EU law across the 27Member States and maintain that the relationship with the national referringcourt is one of cooperation, not appeal. Takis Tridimas has stated that thepreliminary ruling procedure has enabled the European Court Justice (ECJ),”more than any other jurisdictional provision, to define its mandate, establishthe new legal order, and develop constitutional doctrine.”4Article 267 TFEU states the Court of Justice shall have jurisdiction to give”preliminary rulings concerning the interpretation of the Treaty and thevalidity” and “interpretation of Acts of the institutions.” Dr Ewan Kirkdescribes the procedure where the CJEU assists national courts by providing the”interpretation, and the national court is then given the responsibility toapply that interpretation to the case. This ensures that a consistent approachto interpretation of EU law is maintained, and it creates a clear link betweennational law and EU law.”5Article 267 is still very similar to the old Article 234 besides the use of theword ‘Acts’. In using this as opposed to ‘Act,’ the types of EU legislationupon which the CJEU may give a ruling is broader than before. As thepreliminary ruling procedure covers the majority of the CJEU’s workload, theycan address issues that may not have been considered before such as liabilityof Member States’ and the interpretation of national law in line withdirectives.
Article 267 of the Treaty on theFunctioning of the European Union (TFEU) is essential in providing consistencyof interpretation allowing EU law to be applied frequently, regardless of wherein the European Union that may be. It allows for the development of EU law inthe way national and EU legal systems interact and communicate. ProfessorStephen Weatherill concludes that many of the Court’s “most heroic judgmentswhich have shaped the character of the Union legal order are preliminaryrulings,”1maintaining the critical impact the preliminary ruling procedure has on EU law.Paul Craig and Gráinne De Búrca describe this procedure as “The Jewel in the Crown of EULaw”2providing a platform for the Court of Justice of the European Union (CJEU) todeliver constitutional decisions that outline the relationship between MemberStates and the European Union. Despite this, there are arguments that suggestArticle 267 has been overworked in several ways such as pushing the boundariesof the type of bodies which can refer. This can result in poor quality rulingsif the Court is overwhelmed.