The Court of Justice of the European Union
(CJEU) ensures ‘that in the interpretation and application of the treaties, the
law is observed’.1
By contrast, national courts apply and enforce EU law and ensure effective
remedies are available.2
Under a preliminary ruling procedure the CJEU responds
to a question asked by national courts regarding the meaning of EU law, or the
validity of a measure of EU law.3
This involves interpreting EU law and is not an appeal. National courts decide
whether to refer to the CJEU, in relation to the interpretation of treaties, or
the validity and interpretation of acts of the Union institutions, bodies,
offices or agencies.4
To be admissible, there must be a genuine dispute between the parties, and the
court will not respond to hypothetical questions.5
Furthermore, the question must be relevant to the resolution of the substantive
action in the national court.6
The question must be articulated clearly for the CJEU to give a meaningful
response and if the factual or legal context lacks clarity, with inadequate
background information, then the court will refuse to give a ruling.7
Only national courts or tribunals can refer. In
deciding whether a body constitutes a court or tribunal, a number of issues
will be considered; primarily whether the body is established by law and
whether it is permanent, also, whether its jurisdiction is compulsory and
whether it has an inter partes procedure.
Whether it applies rules of law and whether it is independent are further
considerations. However, the CJEU has ruled that this criteria is not absolute.8
According to Article
267, a ‘court or tribunal may, if it considers… necessary to enable it to give
a judgment, request the Court to give a ruling’.9 This
indicates that there is discretion as to whether they refer. However, it
further states that where a case is ‘pending before a court or tribunal of a
member state, against whose decisions there is no judicial remedy under
national law, the court and tribunal shall bring the matter before the court’.10
This refers to cases that are due to be heard at the highest national court,
meaning there is no judicial remedy following its decisions. In these
situations referral to the CJEU is obligatory.
guidance was provided in the CILFIT case.11
Here, the court established that even if it is the highest court and there is
no 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 of
the dispute, then a referral is not obligatory. This also extends to when a
previous CJEU ruling has adequately covered the point. This indicates a system
of precedent. The application of EU law may be sufficiently obvious, meaning
there is no scope for doubt as to how the question raised should be resolved
and it is clear to the national judge what the interpretation should be (known
as the acte clair principle). There is no doctrine as to what interpretation
means and, as national courts are not always under obligation to refer, then
there is the potential for the acte clair principle to be abused by national
courts, resulting in a failure to refer. However, national courts must consider
the matter equally obvious to other national courts and the CJEU, giving regard
to the versions of the provision in different languages and considering the
linguistic variations. National courts also consider the specific
characteristics and the nature of EU law and the risk of divergences in
judicial decisions within the EU.
Once a referral
to the CJEU has been made then the procedure involves an advocate general, a
written stage and, if necessary, an oral hearing. The court either settles a
case 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 the
CJEU and national courts. A majority makes decisions and there is one collective
judgment. This judgment does not only refer to a purpose driven interpretation
of the relevant law but also a systemic understanding of the legal order of the
EU; extending to the interpretation of all EU laws.12
The referring court is bound by the interpretation held by the CJEU, when
dealing with the matter in which the question was raised and where an identical
question is asked.13
However, more recent case law has involved national courts ignoring CJEU preliminary
rulings due to the CJEU exceeding its jurisdiction, indicating that CJEU
preliminary rulings are not always binding.14
Where there has
been a failure to refer, then there has been a breach of constitution and the
European Commission can bring the matter to the CJEU.15 Furthermore,
individuals who are part of the case may give rise to an action for damages
from the state.16
In the Miller
litigation, both the High Court and the Supreme Court had the opportunity to
refer to the CJEU, however chose not to. Following the announcement that government
intended to invoke Article 50 Treaty on European Union (TEU), Miller argued
that parliamentary approval was required through a vote or debate before
intention to invoke Article 50 could be declared. The Government argued that
they could trigger Article 50 based on royal prerogative powers, so parliamentary
consultation was unnecessary. After the High Court judgment it was suggested
that the CJEU would have the final say on the use of Royal Prerogative. If
interpretation of Article 50 were required then this would be a matter of EU
law rather than UK law, as stipulated in Article 267 (TFEU). The issue of
whether an Article 50 notice can be revoked if a Member State changes its mind
may be an issue, which requires interpretation by the CJEU. However, this is a
contentious area as many felt that a decision to trigger Article 50 as a
national arrangement is not relevant to the CJEU.
litigation advanced to the Supreme Court. This is the court of last instance,
so if there were any uncertainties regarding the interpretation of EU law, then
a referral must be made to the CJEU unless it is ‘acte clair’. The issue of the
irrevocability of article 50 was not raised in the Supreme Court, and it
proceeded on the assumption of it being irrevocable. This failure to consider
the irrevocability of Article 50 could be seen to be politically motivated, as a
failure to identify a consensus on the irrevocability of Article 50 would have resulted
in the Supreme Court, as the court of last instance, being obligated to refer
to the CJEU. This would have been unpopular, as it could be seen that the EU
was interfering in the way the UK’s exit. However, failure to consider the
irrevocability of Article 50 and the absence of an Article 267 referral to the
CJEU for interpretation has created legal uncertainty. The assumed
irrevocability of Article 50 is a contentious issue, due to the strict
interpretation of Article 50(3). There has been much academic debate
surrounding the assumed irrevocability of Article 50, with Professor Closa
drawing on international examples where the state is permitted a ‘cooling off
period’ in which it is able to change its decision.17 Additionally,
Lord Kerr of Kinlochard has acknowledged the potential revocability of Article
the High Court hearing of the Miller litigation, there was much debate
regarding whether a referral should be made to the CJEU. Some argued that a
referral was “legally unavoidable” and that failure to refer would trigger “a
risk of infringement of EU law by the UK”.19
The opposing argument is that”…Parliament did not intend for EU rules, like the
duty to make reference to the EU Court, to have any effect in UK law in matters
of withdrawal from the EU”.20
arguments, the Supreme Court was under an obligation established in EU treaty law,
which cannot be avoided through domestic procedural rules.21
The revocability question was one of the most complex issues in the Miller litigation
and was unresolved. It should have been unavoidable that the Supreme Court
would make a referral to the CJEU, due to it being the court of last instance
of a Member State, but also as the court’s judgment rested on the
interpretation of EU law. Evidently, there has been a breach of EU law causing
an environment of legal uncertainty. Any decisions made by Parliament resulting
from 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 inevitable
course of ceasing to be a member of the EU, regardless of whether a deal upon
exit had been reached or not. Although “the politics of the EU referendum
result would be likely to rule out” the option of a CJEU referral being made, regarding
the revocability of Article 50 would have avoided any legal uncertainty
following the Supreme Court Judgment.22
1 Consolidated Version of the Treaty on
European Union 2008 OJ 115/27 Article 19(1).
2 Consolidated Version of the Treaty on
European Union 2008 OJ 115/18
Article 4(3) ; Article 19(1) (n 1).
3 Consolidated Version of the Treaty on
the Functioning of The European Union 2008 OJ 115/164
4 Article 267 (1 a-b) (n 3).
5 Case 104/79 Foglia
v Novello (No.1) 1980 ECR 745; Case 244/80 Foglia v Novello (No.2) 1981 ECR 3045.
6 Case 83/91 Wienand
Meilicke v ADV/ORGA AG 1992 ECR I-4871; Case 18/93 Corsica Ferries Italia Srl v Corpo dei Piloti del Porto di Genova 1994
ECR I-1783; Case 428/93 Monin
Automobiles-Maison du Deux Roues 1994 ECR I-1707; Case 343/90 Manuel José Lourenço Dias v Director da
Alfâdega 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 1995
8 Case 246/80 Broekmeulen
v 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 ECR
Poiares Maduro, ‘Interpreting
European 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 Costa
1963 ECR 31.
14 Case 206/01 Arsenal Football Club
v Mattew Reed 2003 2 CMLE 25.
Version of the Treaty on the Functioning of The European Union 2008 OJ 115/160 Article 258.
16 Case 224/01 Gerhard Köbler v
Republik 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 not
inevitable’ (BBC News, 3rd
20th December 2017.
19 Albert Sanchez- Graells, ‘Why An Appeal Of The High Court
Parliamentary Approval Brexit Judgment Will Bring The Litigation To The CJEU?’
(How to Crack a Nut: A blog on EU
economic law, 3rd November 2016)
accessed 21st December 2017.
20 Miko?aj Barczentewicz, ‘The Supreme Court Should
Not Refer to the EU Court of Justice on Article 50’ (UK Constitutional Law
Association, 11th November 2016)
accessed 21st December 2017.
21 Miko?aj Barczentewicz, ‘UK Supreme Court Miller
Judgment Seeks To Reassert Parliamentary Sovereignty, But It Does So In Breach
Of EU Law And In Disservice To The UK Parliament’ (How to Crack a Nut: A
blog 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 EU
Committee, 8th March 2016)
accessed 21st December 2017.