PRELIMINARY RULINGS PROCEDURE

1
PRELIMINARY RULINGS PROCEDURE

• Article 234 EC Treaty

2
Lecture Aims

• Understand the purpose of the preliminary rulings
  procedure
• Know how the preliminary rulings procedure
  operates
• Understand the circumstances in which a
  preliminary ruling is not necessary

3
Overview of procedure

• Increasing number of cases, before the national
  courts, concerning Community law
• National court may be faced with question of
  interpretation of the Community law provision
• National court may seek a preliminary ruling on
  the point of law from the ECJ
• National proceedings are adjourned pending ruling
  from ECJ
• Interlocutory procedure

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Article 234 (ex 177)

• The Court of Justice shall have jurisdiction to
  give preliminary rulings concerning
• (a) the interpretation of this Treaty
• (b) the validity and interpretation of acts of
  the institutions of the Community and of the ECB
• (c) the interpretation of the statutes of bodies
  established by an act of the Council, where those
  statutes so provide.
• 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 of justice give a
  ruling thereon.
• Where such a 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 of
  Justice.

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Purpose of the preliminary rulings procedure

• to secure uniformity in the interpretation of
  Community law
• Case 13/61 De Geus
• The progressive integration of the Treaty into
  the legal, social and economic life of the Member
  States must involve more and more frequently the
  application and, when the occasion arises, the
  interpretation of the Treaty in municipal
  litigationthe provisions of Article 234 must
  lead to a real and fruitful collaboration between
  the municipal courts and the Court of Justice

6
Purpose of the preliminary rulings procedure

• Case 166/73 Rheinmühlen
• Article 234 is essential for the preservation of
  the Community character of law established by
  this Treaty and has the object of ensuring that
  in all circumstances the law is the same in all
  States of the Community
• the ECJ has a panoramic view of the Community
  and Community law

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Preliminary rulings

• Interlocutory procedure
• Shared jurisdiction
• National court adjourns and question(s)
  submitted to ECJ
• ECJ provides preliminary ruling to national
  court
• National rules on the facts and decides outcome
  of the case
• NOT an appeals procedure

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Jurisdiction

• The Court of Justice shall have jurisdiction to
  give preliminary rulings concerning
• (a) the interpretation of this Treaty
• (b) the validity and interpretation of acts of
  the institutions of the Community and of the ECB
• (c) the interpretation of the statutes of bodies
  established by an act of the Council, where those
  statutes so provide.
• Treaty includes EC Treaty and all amending
  Treaties, also limited jurisdiction in relation
  to EU Treaty (Treaty on European Union)
• Acts of institutions includes EC regulations and
  directives

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PRELIMINARY RULINGS

• The interpretation of the Treaty
• The validity and interpretation of acts of the
  institutions (regulations/directives/ decisions)

• Not the validity of national law or the
  compatibility of national law with EC law
• Case 26/62 Van Gend en Loos
• Case 6/64 Costa v Enel
• Not on the application of the Treaty
• Not on the facts of the case

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PRELIMINARY RULINGS

• Arsenal Football Club v Reed 2002 All ER (d)
  180
• English High Court expressed concern about ECJ
  preliminary ruling (in Case C-206/01)

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Any Court or Tribunal

• Matter of Community law/national categorisation
  not conclusive
• Case 246/80 Broekmeulen (Dutch Appeals Committee
  for General Medicine)
• medical appeals tribunal
• Case 102/81 Nordsee Deutsche Hochseefischerei
• not an independent arbitrator

12
Any Court or Tribunal

• Cases C 74 125/95 Criminal Proceedings against
  X
• not an Italian prosecutor (not sufficiently
  independent)
• Case C-416/96 El -Yassini v Secretary of State
  for the Hope Department
• Immigration Adjudicator

13
Any Court or Tribunal of a Member State

• Case 61/65 Vaassen
• Established by law
• must be judicial in nature (makes legally binding
  decisions)
• inter partes procedure
• have degree of permanence
• be recognised by the state (some form of
  statutory origin)
• Criticism by Advocate General Colomer in Case
  17/00 de Coster

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ARTICLE 234

• Paragraph (2) Courts which may seek a ruling - if
  the court considers that a decision on the
  question is necessary to enable it to give
  judgment

• Paragraph (3) A court shall seek a ruling if the
  question is raised in a court against whose
  decision there is no judicial remedy

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Discretionary referral

• Article 234 (paragraph 2)
• Entirely for the national court to decide whether
  it is necessary and also whether to refer
• Case 166/73 Rheinmühlen - a national court cannot
  be deprived of its power to refer by rulings of
  superior courts

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Mandatory Referral

• Where any such question is raised in a case
  pending before a court or tribunal of a Member
  State against whose decision there is no judicial
  remedy under national law that court or tribunal
  shall bring the matter before the court.

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Article 234 (3)-which courts?

• Abstract theory
• courts from which there is never a right of
  appeal
• House of Lords
• Conseil dEtat (France)

• Concrete theory
• whether there is no right of appeal in the type
  of case in question

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Article 234 (3)-which courts?

• Abstract
• Bulmer v Bollinger 1974- short of the House of
  Lords, no other English court is bound to refer a
  question... per Lord Denning

• Concrete
• Case 6/64 Costa v ENEL -national courts against
  whose decisions, as in the present case, there is
  no judicial remedy, must refer the matter to the
  Court of Justice ECJ in relation to Italian
  magistrates court

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Article 234 (3)-which courts?

• Case C-99/00 Lyckeshog
• ECJ returned to the reason why Art 234 (3) had
  been included- to prevent a body of national case
  law, not in accordance with Community law, from
  coming into existence
• However ECJ held that courts are not final courts
  for these purposes where leave to appeal from
  their judgement is required
• the fact that examination of the merits of such
  appeals is subject to a prior declaration of
  admissibility by the supreme court does not have
  the effect of depriving the parties of a judicial
  remedy Paragraph 16

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ART 234(3)-Mandatory referral

• Does this mean that a national court that falls
  within this paragraph MUST refer every question
  of Community law that it encounters?
• Text of Art 234 (3) suggests that the answer is
  yes- Where any such question shall bring the
  matter before the court.
• The answer is in fact NO.
• Courts falling within this paragraph are only
  obliged to seek a preliminary ruling (the shall
  still operates) where the court considers the
  ruling is necessary.

21
Case 283/81 CILFIT Srl

• Case before Italian Supreme Court (the
  Cassazione) ( a court falling within Art 234 (3))
• Question in the proceedings had already been
  addressed by ECJ in earlier case
• Was the Italian court still bound by Art 234 (3)
  to seek a ruling even where it had no doubt as to
  the meaning of the provision because the ECJ had
  already given a ruling?

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When will it be necessary?

• Case 283/81 CILFIT Srl
• it follows from the relationship between the
  second and third paragraphs of article 177 now
  234 that the courts or tribunals referred to in
  paragraph 3 have the same discretion as any other
  national court or tribunal to ascertain whether a
  decision on a question of Community law is
  necessary to enable them to give judgment
• all national courts and tribunals have the same
  discretion in deciding whether a question of
  Community law was necessary to enable them to
  give judgment
• Only difference is that courts that fall into Art
  234 (3) are obliged to seek a PR if they conclude
  that one is necessary, whereas lower courts are
  not obliged.

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When will it be necessary?

• ECJ addressed this in Cilfit by looking at when
  it will not be necessary
• The first thing that has to be established is
  that there is a question of Community law

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Where any such question is raised (CILFIT Srl)

• There must be a question relating to the
  interpretation of Treaty or acts of the
  institutions
• the fact that a party contends that the dispute
  gives rise to a question concerning the
  interpretation of Community law does not mean
  that the court (or tribunal) is compelled to
  consider that a question has been raised
• a national court may, in appropriate cases, refer
  a matter of its own motion

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CILFIT Criteria

• It will not be necessary to refer a question
  where
• (a)the question raised was not relevant
• (b) where the question is relevant then the
  national court should consider whether previous
  decisions of the Court have already dealt with
  the point of law in question
• (c) where the correct application of Community
  law is so obvious so as to leave no scope for
  reasonable doubt- acte clair

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The question must be relevant

• Case 283/81 CILFIT Srl
• national courts..are not obliged to refer a
  question concerning the interpretation of
  Community law raised before them if that question
  is not relevant, that is to say, if the answer to
  that question, regardless of what it may be, can
  in no way affect the outcome of the case

27
Has there already been a previous ruling?

• Cases 28-30/62 Da Costa v Nederlandse Belasting
  Administraitie
• the authority of an interpretation
  underArticle 234 already given by the Court may
  deprive the obligation of its purpose and thus
  empty it of its substance
• such is the case especially when the question is
  materially identical with a question which has
  already been the subject of a preliminary ruling
• Case 283/81 Cilfit Srl
• where previous decisions of the Court have
  already dealt with the point of law in question,
  irrespective of the nature of the proceedings
  which led to those decisions, even though the
  questions at issue are not strictly identical

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Cilfit Criteri-Acte clair

• (c) where the correct application of Community
  law is so obvious so as to leave no scope for
  reasonable doubt-
• acte clair
• doctrine from French administrative law
• where a provision of law is so clear no question
  of interpretation arises
• if a national court concludes that a point of
  Community law is acte clair then it is not
  necessary to seek a preliminary ruling

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Acte Clair

• Finally, the correct application of Community
  law may be so obvious as to leave no scope for
  any reasonable doubt as to the manner in which
  the question raised is to be resolved. Before it
  comes to the conclusion that such is the case,
  the national court or tribunal must be convinced
  that the matter is equally obvious to the courts
  of the other Member states and to the Court of
  Justice. Only if these conditions are satisfied
  may the national court or tribunal refrain from
  submitting their question to the Court of Justice
  and take upon itself the responsibility for
  resolving it. Paragraph 16

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Acte Clair

• Community legislation drafted in different
  languages and the different language versions are
  equally authentic
• Community law uses terminology peculiar to it
• legal concepts have different meanings in
  Community law and the law of the Member States
• every provision of Community law must be placed
  in its context and interpreted in the light of
  the provisions of Community law a whole

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CILFIT Criteria

• Courts of last resort not obliged to seek a
  ruling where (see paragraph 21)
• the question raised was not relevant
• where the question is relevant then the national
  court must consider whether previous decisions of
  the Court have already dealt with the point of
  law in question
• where the correct application of Community law is
  so obvious so as to leave no scope for reasonable
  doubt

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CILFIT criteria

• Also apply to Courts not covered by paragraph 234
  (2)-in short applies to all national courts and
  tribunals
• ECJ also makes it clear that, not withstanding
  the Cilfit guidelines it must not be forgotten
  that in all such circumstances national courts
  and tribunals...remain entirely at liberty to
  bring a matter before the Court of Justice if the
  consider it appropriate to do so Paragraph 15.

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Validity

• Case 314/85 Foto Frost v Hauptzollamt Lübeck-Ost
• Divergences between courts in the member states
  as to the validity of Community acts would be
  liable to place in jeopardy the very unity of the
  Community legal order and detract from the
  fundamental requirement of legal certainty.

34
When to refer

• At discretion of national court
• Preferable if the facts have been decided and
  legal issues clarified
• Case 36/80 Irish Creamery Milk Suppliers v
  Government of Ireland
• national court must define factual and legal
  circumstances in which the question arises Case
• C-320-322/90 Telemarsicabruzzo SpA
• cannot be made after the principal issue has been
  decided-
• Case 338/85 Pardini

35
When to refer

• Enormous delay (18 months 2years)
• Costs
• Views of the parties (although ultimately for
  national court to decide)

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Refusals to give rulings

• Case 104/79 Foglia v Novello (No. 1) ECJ will not
  give rulings in relation to hypothetical
  questions (ECJ decided the dispute was contrived
  and not a genuine dispute) arranged by the
  parties in order to induce the Court to give its
  views on certain problems of Community law which
  doe not correspond to an objective requirement
  inherent in the resolution of a dispute

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Refusals to give rulings

• Case 244/80 Folglio v Novello (No. 2)
• Refusal to give a ruling in relation to
  hypothetical questions
• ECJ will not give advisory opinions
• ECJ reserves the right to examine where
  necessary, (in order to confirm its own
  jurisdiction), the reasons given by the national
  court for seeking a ruling
• Case C-83/91 Meilicke v ADV/ORGA
• Question not relevant to the proceedings

38
Refusals to give rulings

• Where question not relevant
• Case C-62/93 BP Supergas v Greece
• Where national court failed to articulate the
  questions or failed to sufficiently define legal
  and factual context of the case
• Cases C-320 321/90 Telemarsicabruzzo v Circostel

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Effect of a preliminary ruling

• Binding on the national court in the case in
  which the ruling is sought
• However see Arsenal v Reed 2002
• In the light of Article 10 EC Treaty which
  requires the state (including national courts) to
  ensure fulfilment of obligations arising out of
  the Treaty- hence national courts are under
  obligation to comply with earlier decisions of
  the ECJ

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The Preliminary Rulings Procedure

• a stroke of genius- Arnull
• the jewel in the Crown Craig De Búrca
• Supremacy
• Direct effect
• Indirect Effect
• State Liability

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Problems with Preliminary rulings

• Significant delays
• Associated problems of costs and impact on
  national cases
• Proposals for reform
• The Future of the Judicial System of the European
  Union (Proposals and Reflections) (May 1999)
• Due Report (Report by the Working Party on The
  Future of the European Communities Court System
  (January 2000)

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Article 225 (3) EC (Post Nice)

• The CFI shall have jurisdiction to hear and
  determine questions referred for a preliminary
  rulingin specific areas laid down by the
  Statute.
• Where the CFI considers that the case requires a
  decision of principle likely to affect the unity
  or consistency of Community law, it may refer the
  case to the ECJ for a ruling.
• Decisions given by the CFI on questions referred
  for a preliminary ruling may exceptionally be
  subject to review by the ECJ, under the
  conditions and within the limits laid down by the
  Statute, where there is a serious risk of the
  unity or consistency of Community law being
  affected.

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Conclusions

• Preliminary rulings procedure designed to ensure
  uniform interpretation of Community law
  throughout European Union
• Article 234 defines jurisdiction of ECJ and
  confers discretion on national courts to seek a
  ruling where they consider it necessary
• Courts falling within paragraph 234 (3) are only
  required to seek a ruling (shall) where they also
  think it is necessary (Cilfit)
• ECJ has given guidance to national courts as to
  when a preliminary ruling will not be necessary
  but national courts free to decide
• However ECJ will, on occasions, refuse to give a
  ruling in certain circumstances
• Proposals for reform