The Court of Justice of the European Union(CJEU) ensures ‘that in the interpretation and application of the treaties, thelaw is observed’.1By contrast, national courts apply and enforce EU law and ensure effectiveremedies are available.2 Under a preliminary ruling procedure the CJEU respondsto a question asked by national courts regarding the meaning of EU law, or thevalidity of a measure of EU law.3This involves interpreting EU law and is not an appeal. National courts decidewhether to refer to the CJEU, in relation to the interpretation of treaties, orthe validity and interpretation of acts of the Union institutions, bodies,offices or agencies.

4To be admissible, there must be a genuine dispute between the parties, and thecourt will not respond to hypothetical questions.5Furthermore, the question must be relevant to the resolution of the substantiveaction in the national court.6The question must be articulated clearly for the CJEU to give a meaningfulresponse and if the factual or legal context lacks clarity, with inadequatebackground information, then the court will refuse to give a ruling.

7 Only national courts or tribunals can refer. Indeciding whether a body constitutes a court or tribunal, a number of issueswill be considered; primarily whether the body is established by law andwhether it is permanent, also, whether its jurisdiction is compulsory andwhether it has an inter partes procedure.Whether it applies rules of law and whether it is independent are furtherconsiderations. However, the CJEU has ruled that this criteria is not absolute.8 According to Article267, a ‘court or tribunal may, if it considers… necessary to enable it to givea judgment, request the Court to give a ruling’.9 Thisindicates that there is discretion as to whether they refer. However, itfurther states that where a case is ‘pending before a court or tribunal of amember state, against whose decisions there is no judicial remedy undernational law, the court and tribunal shall bring the matter before the court’.10This refers to cases that are due to be heard at the highest national court,meaning there is no judicial remedy following its decisions.

In thesesituations referral to the CJEU is obligatory.  Furtherguidance was provided in the CILFIT case.11Here, the court established that even if it is the highest court and there isno judicial remedy, there are certain circumstances where a referral is unnecessary.Where the question of law is not relevant and will not aid in the resolution ofthe dispute, then a referral is not obligatory. This also extends to when aprevious CJEU ruling has adequately covered the point.

This indicates a systemof precedent. The application of EU law may be sufficiently obvious, meaningthere is no scope for doubt as to how the question raised should be resolvedand it is clear to the national judge what the interpretation should be (knownas the acte clair principle). There is no doctrine as to what interpretationmeans and, as national courts are not always under obligation to refer, thenthere is the potential for the acte clair principle to be abused by nationalcourts, resulting in a failure to refer. However, national courts must considerthe matter equally obvious to other national courts and the CJEU, giving regardto the versions of the provision in different languages and considering thelinguistic variations. National courts also consider the specificcharacteristics and the nature of EU law and the risk of divergences injudicial decisions within the EU.  Once a referralto the CJEU has been made then the procedure involves an advocate general, awritten stage and, if necessary, an oral hearing. The court either settles acase by an order or deliberating on the basis of text drafted by a judge- rapporteur.

This ensures uniformity of EU law and promotes judicial dialogue between theCJEU and national courts. A majority makes decisions and there is one collectivejudgment. This judgment does not only refer to a purpose driven interpretationof the relevant law but also a systemic understanding of the legal order of theEU; extending to the interpretation of all EU laws.

12The referring court is bound by the interpretation held by the CJEU, whendealing with the matter in which the question was raised and where an identicalquestion is asked.13However, more recent case law has involved national courts ignoring CJEU preliminaryrulings due to the CJEU exceeding its jurisdiction, indicating that CJEUpreliminary rulings are not always binding.14 Where there hasbeen a failure to refer, then there has been a breach of constitution and theEuropean Commission can bring the matter to the CJEU.15 Furthermore,individuals who are part of the case may give rise to an action for damagesfrom the state.16 In the Millerlitigation, both the High Court and the Supreme Court had the opportunity torefer to the CJEU, however chose not to. Following the announcement that governmentintended to invoke Article 50 Treaty on European Union (TEU), Miller arguedthat parliamentary approval was required through a vote or debate beforeintention to invoke Article 50 could be declared. The Government argued thatthey could trigger Article 50 based on royal prerogative powers, so parliamentaryconsultation was unnecessary.

After the High Court judgment it was suggestedthat the CJEU would have the final say on the use of Royal Prerogative. Ifinterpretation of Article 50 were required then this would be a matter of EUlaw rather than UK law, as stipulated in Article 267 (TFEU). The issue ofwhether an Article 50 notice can be revoked if a Member State changes its mindmay be an issue, which requires interpretation by the CJEU.

However, this is acontentious area as many felt that a decision to trigger Article 50 as anational arrangement is not relevant to the CJEU.  The Millerlitigation advanced to the Supreme Court. This is the court of last instance,so if there were any uncertainties regarding the interpretation of EU law, thena referral must be made to the CJEU unless it is ‘acte clair’.

The issue of theirrevocability of article 50 was not raised in the Supreme Court, and itproceeded on the assumption of it being irrevocable. This failure to considerthe irrevocability of Article 50 could be seen to be politically motivated, as afailure to identify a consensus on the irrevocability of Article 50 would have resultedin the Supreme Court, as the court of last instance, being obligated to referto the CJEU. This would have been unpopular, as it could be seen that the EUwas interfering in the way the UK’s exit. However, failure to consider theirrevocability of Article 50 and the absence of an Article 267 referral to theCJEU for interpretation has created legal uncertainty. The assumedirrevocability of Article 50 is a contentious issue, due to the strictinterpretation of Article 50(3). There has been much academic debatesurrounding the assumed irrevocability of Article 50, with Professor Closadrawing on international examples where the state is permitted a ‘cooling offperiod’ in which it is able to change its decision.17 Additionally,Lord Kerr of Kinlochard has acknowledged the potential revocability of Article50.18 Duringthe High Court hearing of the Miller litigation, there was much debateregarding whether a referral should be made to the CJEU.

Some argued that areferral was “legally unavoidable” and that failure to refer would trigger “arisk of infringement of EU law by the UK”.19The opposing argument is that”…Parliament did not intend for EU rules, like theduty to make reference to the EU Court, to have any effect in UK law in mattersof withdrawal from the EU”.20 Despite sucharguments, the Supreme Court was under an obligation established in EU treaty law,which cannot be avoided through domestic procedural rules.

21The revocability question was one of the most complex issues in the Miller litigationand was unresolved. It should have been unavoidable that the Supreme Courtwould make a referral to the CJEU, due to it being the court of last instanceof a Member State, but also as the court’s judgment rested on theinterpretation of EU law. Evidently, there has been a breach of EU law causingan environment of legal uncertainty. Any decisions made by Parliament resultingfrom this judgment are not as steadfast and certain as they would have been,had it been made clear whether triggering Article 50 would begin the inevitablecourse of ceasing to be a member of the EU, regardless of whether a deal uponexit had been reached or not. Although “the politics of the EU referendumresult would be likely to rule out” the option of a CJEU referral being made, regardingthe revocability of Article 50 would have avoided any legal uncertaintyfollowing the Supreme Court Judgment.

221 Consolidated Version of the Treaty onEuropean Union 2008 OJ 115/27 Article 19(1).  2 Consolidated Version of the Treaty onEuropean Union 2008 OJ 115/18Article 4(3) ; Article 19(1) (n 1). 3 Consolidated Version of the Treaty onthe Functioning of The European Union 2008 OJ 115/164Article 267.  4 Article 267 (1 a-b) (n 3).  5 Case 104/79 Fogliav Novello (No.

1) 1980 ECR 745; Case 244/80 Foglia v Novello (No.2) 1981 ECR 3045. 6 Case 83/91 WienandMeilicke v ADV/ORGA AG 1992 ECR I-4871; Case 18/93 Corsica Ferries Italia Srl v Corpo dei Piloti del Porto di Genova 1994ECR I-1783; Case 428/93 MoninAutomobiles-Maison du Deux Roues 1994 ECR I-1707; Case 343/90 Manuel José Lourenço Dias v Director daAlfâdega do Porto 1992 ECR I-4673.  7 Case 320-322/90 Telemarsicabruzzo v Circostel 1993 ECR I-393; Case 458/93 Criminal Proceedings against Saddik 1995ECR I-511. 8 Case 246/80 Broekmeulenv Huisarts Registratie Commissie 1981 ECR 2311.  9 Article 267 (2) (n 3). 10 Article 267 (3) (n 3).

 11 Case 283/81 Srl CILFIT v Ministry of Health 1982 ECR3415. 12 MiguelPoiares Maduro, ‘InterpretingEuropean Law: Judicial Adjudication in a Context of constitutional Pluralism’ 2007 1(2) European Journal of Legal Studies 1-21.  13 Case 28-30/62 Da Costa1963 ECR 31.

 14 Case 206/01 Arsenal Football Clubv Mattew Reed 2003 2 CMLE 25. 15 ConsolidatedVersion of the Treaty on the Functioning of The European Union 2008 OJ 115/160 Article 258. 16 Case 224/01 Gerhard Köbler vRepublik Österreich 2003 ECR I-10239 17 Carlos Closa Montero,’Is Article 50 Reversible? On Politics Beyond Legal Doctrine’ (Verfassungsblog on Matters Constitutional,4th January 2017) accessed 20th December 2017.

 18 Glenn Campbell, ‘Article 50 author Lord Kerr says Brexit notinevitable’ (BBC News, 3rdNovember 2016)

uk/news/uk-scotland-scotland-politics-37852628>accessed20th December 2017. 19 Albert Sanchez- Graells, ‘Why An Appeal Of The High CourtParliamentary Approval Brexit Judgment Will Bring The Litigation To The CJEU?'(How to Crack a Nut: A blog on EUeconomic law, 3rd November 2016)

com/blog/2016/11/3/why-an-appeal-of-the-high-court-parliamentary-brexit>accessed 21st December 2017. 20 Miko?aj Barczentewicz, ‘The Supreme Court ShouldNot Refer to the EU Court of Justice on Article 50’ (UK Constitutional LawAssociation, 11th November 2016) accessed 21st December 2017.

 21 Miko?aj Barczentewicz, ‘UK Supreme Court MillerJudgment Seeks To Reassert Parliamentary Sovereignty, But It Does So In BreachOf EU Law And In Disservice To The UK Parliament’ (How to Crack a Nut: Ablog on EU economic law, 24th January 2017) accessed 21st December 2017.

 22 Prof Derrick Wyatt, ‘Lords EU Committee March 2016’ (Revised Transcript of Evidence Lords EUCommittee, 8th March 2016)

svc/evidencedocument/european-union-committee/the-process-of-leaving-the-eu/oral/30396.html>accessed 21st December 2017.  


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