[1]Weatherill Materials (3rd edn) (2003) Oxford University Press, p182

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,
p460

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3 Craig, Paul;
de Búrca, Gráinne,  EU law: text, cases, and materials (5th ed.).
Oxford: Oxford University Press (2011) p. 482.

4
Tridimas Takis, Knocking on Heaven’s Door: Fragmentation, Efficiency and Defiance in the Preliminary
Reference Procedure,
(2003) CMLRev  p11

5
Kirk, Dr. Ewan, EU Law, 5th edn (2017) p83

6
Article 267 TFEU, paragraph 1

7
Article 267 TFEU, paragraph 1

8
Kirk, Dr. Ewan, EU Law, 5th edn (2017) p83

9
Arsenal Football Club v Reed 2001 2 CMLR 23. Highlighted that the CJEU had no place to
decide the outcome of the case, it is only able to provide interpretation to
allow the national courts to decide: “outside the powers of the Court of
Justice under Article 267. He therefore applied what he saw as interpretation,
and disregarded anything he considered to be application to the facts.”

10
Craig, Paul; De Búrca, Gráinne, EU Law: Text, Cases and Materials (3rd edn) (2003)
Oxford University Press, p182

11
Article 12 Treaty of Rome (now replaced by Article 30 TFEU)- “Member States shall refrain from introducing between themselves any new
customs duties on imports and exports or any charges having equivalent effect,
and from increasing those which they already apply in their trade with each
other.”

12
Tridimas, Takis, Knocking on Heaven’s
Door: Fragmentation, Efficiency and Defiance in the Preliminary Reference
Procedure, (2003) CMLRev. Pg 11

13 Kirk, Dr. Ewan, EU Law, 5th edn (2017) p89

14
Case
C-54/96 Dorsch Consult Ingenieurgesellschaft v Bundesbaugesellschaft Berlin,
paragraph 3

15
Kirk, Dr. Ewan, EU Law, 5th edn (2017) p90

16
Case 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.’

17
Case 102/81 Nordsee Hochseefischerei GmbH 1982 ECR 1095. CJEU stated it was
not a ‘court or tribunal’ as it was a private agreement and so the public
element was missing. Without the public element, it was not considered a court.

18
Kirk, Dr. Ewan, EU Law, 5th edn (2017) p91:
“Where such a question is raised before ant court or tribunal of a Member
State, that court or tribunal may,…, request the Court to give a ruling
thereon.”

19
Kirk, Dr. Ewan, EU Law, 5th edn (2017) p92

20
Case 244/80 Foglia v Novello 1981 ECR 3045

21
Kirk, Dr. Ewan, EU Law, 5th edn (2017) p92:
“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.”

22
Kirk, Dr. Ewan, EU Law, 5th edn (2017) p96

23
Tridimas Takis, Knocking on Heaven’s Door: Fragmentation, Efficiency and Defiance in the Preliminary
Reference Procedure,
(2003) CMLRev  p12

24
Arnull, A. Reflections on Judicial
Attitudes at the European Court, ICLQ. (1985) p34

25
Chalmers, D.; Davies, G.; Monti, G. European
Union Law: Cases and Materials. Cambridge: Cambridge University Press (2010)
p177

26
Case C-224/01, Gerhard Ko?bler v. Republik O?sterreich 2003 ECR

27
Weatherill Stephen, Law and Values in the
European Union (Oxford University Press 2016)

28
Opinion of Advocate General Léger in Case C-224/01, Gerhard Ko?bler v. Republik
O?sterreich 2003 ECR paragraph 147

29
Kirk, Dr. Ewan, EU Law, 5th edn (2017) p95

30
Tridimas, Takis, Knocking on Heaven’s
Door: Fragmentation, Efficiency and Defiance in the Preliminary Reference
Procedure, (2003) CMLRev. Pg 12

31
Cases
28-30/62 Da Costa en Schaake NV v Nederlandse Belastingadministratie 1963 ECR
31. The CJEU decided that a national court of last instance was under no
obligation to make a reference where the question raised is almost identical to
one which had already been answered.

32
Kirk, Dr. Ewan, EU Law, 5th edn (2017) p96

33
Arsenal Football Club v Reed 2001 2 CMLR 23. It is not the place of the CJEU
to decide the ruling on the case, only to provide interpretation to answer the
national courts’ question.

34
Horspool, Margot, Humphreys,
Matthew, Wells-Greco, Michael, European
Union Law, 9th edn, p75

35
Jacobs, Francis G., European
Union Law Review: Recent and Ongoing Measures to Improve the Efficiency of the
European Court of Justice, (2004), p823

Addressing Weatherill’s statement,
the preliminary ruling procedure is crucial to the development of European law
providing key principles used to establish the legal system of the European
Union. Even so, there are still issues surrounding mandatory and discretionary
references as well as what constitutes a court and tribunal.  Additionally, around 2/3rd’s of
the cases that are decided by the CJEU are in response to Preliminary
References34
leaving the Court overwhelmed with referrals. This continuous growth could
lengthen the process and possibly lead to poor quality in the rulings as the
Court has less time in overseeing the development of EU law “some cases will be more complex than
others and will take longer to resolve.”35

Once the CJEU has answered the
questions of the national court, it is down to that court to follow the
guidance of the CJEU and apply it to the relevant case. There is a broad
obligation 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 in
general.”32
It is not the role of the CJEU to apply the ruling to the facts, the national
court will have to do this33
and the case must still be active until the matter returns from the CJEU.

There are certain circumstances
where the national court can refuse a referral to the CJEU. This is important
when 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 French
law term means that the law is clear and does not need interpreting: “If
something is acte clair, then there is no reason to ask for clarification from
the CJEU, and no question for the CJEU to answer.”29
Professor Tridimas argues that the principle gives national courts a creative
role in maintaining and shaping Community Law. He also comments that “Acte
clair is an indication of maturity in the development of the Community legal
order”30
and it allows the CJEU to establish the normative value of its rulings as seen
in Cases 28-30/62 Da Costa en Schaake NV v Nederlandse Belastingadministratie
1963 ECR 31.31 Although
this principle removes cases from the CJEU that could be considered a waste of
time if the provision is so obvious, it must be used with caution as it could
lead to discrepancies within interpretation.

As
for state liability, the ruling in Case C-224/01 Gerhard Köbler26
supports Weatherill’s statement of preliminary ruling’s creating “many of the Court’s
most heroic judgments.”27
It opened the question of whether a state could be held liable under EU law
when a national court of last resort “infringed EU law by refusing to refer a
case under Article 267 TFEU.”28
As a judicial system could infringe EU law, this was a major development.

There are exceptions to Article
267(3) known as the CILFIT principle created in Case 283/81 CILFIT and others v
Ministero Della Sanità 1982 3415. The Court considered that it would not be
necessary to make a reference where “the question of EU law is irrelevant; the
provision has already been interpreted by the ECJ (now CJEU); the correct
application of EU law is so obvious as to leave no room for reasonable doubt.”22
The CILFIT case makes it clear that it is the national court’s job to make a
reference to the CJEU and still can find grounds to refuse making a reference. Professor
Tridimas believes the case marked an important stage in developing the
relationship between the CJEU and the national courts by introducing the acte clair
doctrine: “The doctrine promoted the process of federalization of the judicial system.”23
Some commentators also argue that the exceptions presented in the CILFIT
judgment have provided circumstances where some individuals may not have access
to the CJEU, creating a gap in judicial protection.24
Additionally, Professor Chalmers believes the CILFIT case has given national
courts more powers to make decisions in a “highly distorted way.”25

As for National court compulsory
references, it is essential the national court refers questions to the CJEU as
stated in Article 267(3) TFEU.21
This means the national court must make a reference to the CJEU if there are
questions of EU law that need answering and there is no right of appeal. Where
a question is raised in a court which has no ability to appeal, it is known as
a court of last instance and that question must be referred to under the
preliminary ruling procedure. There are theories focusing on courts of last
instance; The Concrete Theory (the court of last instance is one from which
there is no appeal in this case) and
the Abstract Theory (the court of last instance is the only one from which
there is never an appeal from this court). Initially, UK courts preferred the
Abstract Theory as it meant the only court that was under an obligation to
refer questions to the CJEU was the House of Lords. However, the CJEU favour
the concrete theory seen in the Case 6/64 Costa v ENEL. Over time, the UK
judiciary have opted to side with the CJEU’s approach in order for better
cooperation highlighted in the case of Hagen v Fratelli 1980 3 CMLR 253 at
255. However, Article 267 is still separated into mandatory and discretionary
references which could cause difficulty in the development of this procedure.

 

Whenever a question is raised in national courts
regarding EU law, they have a choice on whether to refer it to the CJEU as
defined in Article 267(2) TFEU.18
Although the decision for interpretation lies with the national court, it must
be one of genuine importance to give a ruling on a case. This was seen in the
case of Commissioners of Customs and Excise v Samex Aps 1983 3 CMLR 194 where
Lord Bingham pointed out that where a party was attempting to use Article 267
as a delay tactic, “this would justify the Court’s refusal to make a reference
to the CJEU.”19 For
discretionary references, although the national court does not have to make a
reference to the CJEU, it must clearly explain why they are not doing so.20
Additionally, if the national court does decide to refer to the CJEU, they make
a preliminary judgment concluded the questions they wish to ask the European
Court and then make their final judgments once the CJEU returns their reference
back with answers to their questions. It does not matter when the reference is
made as it can be a lengthy process as long as the case is still active as seen
in Case 35/76 Simmenthal v Amministrazione delle Finanze dello Stato 1976 ECR
1871.

However, the requirements set out in the Dorsch
case are not absolute as highlighted in Broekmeulen v Huisarts Registratie
Commissie 1981 ECR 2311. In this case, the CJEU recognised the appeals
committee as a court despite Dutch law not recognising it. The CJEU believed it
to have all the qualities necessary for a body to be considered a Court for the
purposes of EU law: “it operates with the consent of the public authorities and
their cooperation, and…after an adversarial procedure, delivers decisions which
are recognised as final.”15
The Dorsch case implemented a functional approach to determine whether
something falls within the scope of ‘court or tribunal.’ This functional
approach allows more bodies to refer their cases to the CJEU even if they are
not actually a court or tribunal. This opens different ideas to EU law with
more rulings taking place clarifying ambiguous law that might not have been
looked at before. It can also reduce appeals if the area of law has been looked
at before showing advancements within the CJEU. What constitutes a court or
tribunal is a matter of EU law and despite numerous refusals to accept domestic
tribunals16
and arbitrators17,
the Court have a wide interpretation when using Article 267 increasing the time
for 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 to
encourage the propensity of national courts to think federal, it adopted a wide
definition of the term ‘court or tribunal.'”12
Article 267 makes a reference to ‘any court or tribunal.’ The issue here is
establishing what either of these mean as they are not clearly defined in the
Article. It is quite clear that courts within the main judicial body are
accounted for in this definition but there are problems if other courts or
tribunals wish to go through the preliminary ruling procedure as they may be
refused. According to Dr Kirk, a court or tribunal should “have a judicial function,
have independence from the parties concerned; and be recognised by the State
for its decision-making function.”13
In Case C-54/96 Dorsch Consult Ingenieurgesellschaft v Bundesbaugesellschaft
Berlin, they considered what the EU considers to be a court or tribunal which
includes permanence, independence from the parties as well as performance of a
judicial function.14
This was also affirmed in Case C-17/00 De Coster v Collège des Bourgmestre et Échevins de
Watermael-Boitsfort 2001 ECR.

One of the CJEU’s landmark judgments
established the doctrine of direct effect with Craig and De Búrca stating “The ECJ first articulated its doctrine of direct
effect in 1963 in what is probably the most famous of its ruling,”10
showing the importance preliminary rulings have on the European Union. Case
26/62 Van Gen en Loos v Nederlandse Administratie der Belastingen 1963 ECR
was a result of the preliminary ruling procedure that was a violation of
Article 12 Treaty of Rome (now replaced by Article 30 TFEU).11 This case questioned the
close link between direct effect and supremacy which was not asserted until
Case 6/64 Flaminio Costa v ENEL 1964 ECR 585. As the case had a unique
nature, this encouraged the CJEU to construct the supremacy principle with the
case being a challenge against the Court’s authority. The supremacy principle
is essential to the uniformity of EU law along with direct effect as they both
provide a purpose that coincides with Article 267 further highlighting its
importance. Although both principles are dependent from the preliminary ruling
procedure, they implement key requirements such as domestic provisions being
unable to override EU law.

Although the court does not choose
the 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 various
ways. One example is seen in Case 13/68 Salgoil SA v Italian Minister of
Foreign Trade 1968 ECR 453 where the question must be significant for the
national court to give a judgment. Another example is in Case 244/80 Foglia v
Novello (No.2) 1981 ECR 3045 on the basis that the question must not be
hypothetical. In this case, the CJEU (formerly the ECJ in this case), refused a
reference deciding that the proceedings had created a synthetic situation to
have a question answered. A limitation of the CJEU would be that they can only
interpret Treaty’s, not national law seen in the case of Flaminio Costa v ENEL 1964 ECR 585. This may limit
their interpretation when the national court’s need a question answered which
could result in poor ruling.

Cooperation between the courts
of Member States and the CJEU is a fundamental, underlying element of Article
267. This cooperation needs to be maintained by the CJEU by interpreting
matters of European law which is then applied consistently throughout the European
Union. This is the role of the CJEU who answer questions on the “interpretation
of the Treaties”6
and questions the “validity/interpretation of Acts of the Institutions.”7
As seen in the Arsenal Football Club v Reed 2001 2 CMLR 23 case, the CJEU cannot
proactively deal with matters itself under a “strict policy of
non-interference.”8
The Court goes no further than answering questions put to it by national courts
and has no involvement with the application of their provided answers.9

A preliminary ruling is a
request made by a court or tribunal of a European Union Member State to the
CJEU to interpret a point of EU law which is necessary for the national court
to give judgment. EU preliminary rulings can only be made by the CJEU who make
the final decision. The Treaty of Lisbon provided that jurisdiction may be
conferred on the General Court, but this has not been put into effect.3
This procedure is to ensure the uniform application of EU law across the 27
Member States and maintain that the relationship with the national referring
court is one of cooperation, not appeal. Takis Tridimas has stated that the
preliminary ruling procedure has enabled the European Court Justice (ECJ),
“more than any other jurisdictional provision, to define its mandate, establish
the new legal order, and develop constitutional doctrine.”4
Article 267 TFEU states the Court of Justice shall have jurisdiction to give
“preliminary rulings concerning the interpretation of the Treaty and the
validity” and “interpretation of Acts of the institutions.” Dr Ewan Kirk
describes the procedure where the CJEU assists national courts by providing the
“interpretation, and the national court is then given the responsibility to
apply that interpretation to the case. This ensures that a consistent approach
to interpretation of EU law is maintained, and it creates a clear link between
national law and EU law.”5
Article 267 is still very similar to the old Article 234 besides the use of the
word ‘Acts’. In using this as opposed to ‘Act,’ the types of EU legislation
upon which the CJEU may give a ruling is broader than before. As the
preliminary ruling procedure covers the majority of the CJEU’s workload, they
can address issues that may not have been considered before such as liability
of Member States’ and the interpretation of national law in line with
directives.

Article 267 of the Treaty on the
Functioning of the European Union (TFEU) is essential in providing consistency
of interpretation allowing EU law to be applied frequently, regardless of where
in the European Union that may be. It allows for the development of EU law in
the way national and EU legal systems interact and communicate. Professor
Stephen Weatherill concludes that many of the Court’s “most heroic judgments
which have shaped the character of the Union legal order are preliminary
rulings,”1
maintaining 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 EU
Law”2
providing a platform for the Court of Justice of the European Union (CJEU) to
deliver constitutional decisions that outline the relationship between Member
States and the European Union. Despite this, there are arguments that suggest
Article 267 has been overworked in several ways such as pushing the boundaries
of the type of bodies which can refer. This can result in poor quality rulings
if the Court is overwhelmed.

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