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Constitutional and institutional law of the European Union.

Section C: Remedies and procedures in European Union law.

Chapter 3: Preliminary references.

Notes by Kaihsu Tai, 2010-07-23.

Treaty provision
"The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:

(a) the interpretation of the Treaties;

(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;

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 to give a ruling thereon.

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.

If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay."

This is qualified by Article 275 TFEU (excluding common foreign and security policy) and Article 276 TFEU (excluding member state acts in the area of freedom, security and justice).

Grounds
Such reference is possible for all EU acts regardless of direct effect: Case C-373/95 Maso and Others v INPS at 28.

ECJ claims jurisdiction to interpret international agreements concluded by the Council, since they are acts of an EU institution: Case 181/73 Haegeman v Belgium. This extends to the GATT, for which EU has substituted the member states: Case C-267/81 SPI. This applies to mixed agreements, even when the issue only partly falls within EU law: Case C-53/96 Hermès v FHT at 32. ECJ claims jurisdiction even over acts of institutions established by an association agreement: Case C-192/89 Sevince.

In contrast, this claim does not extend to international agreements concluded by a member state before EU accession that conflicts with EU law: Case C-158/91 Levy. ECJ jurisdiction is confined to EU law only, and ECJ cannot consider the extent of reference to EU law by national provisions, that being a matter of national law: Case C-297/88 Dzodzi at 42. ECJ does not interpret national law worded identically to EU provisions: Case C-346/93 Kleinwort Benson v City of Glasgow District Council.

ECJ will not hear preliminary references arising out of hypothetical disputes: Case 244/80 Foglia v Novello.

Which courts?
The highest court in a jurisdiction must refer; lower courts may refer: Article 267 TFEU. In the United Kingdom, see s 2(1) European Communities Act 1972, Part 68 Civil Procedure Rules.

Only a body that “is established by law ... is permenant ... [whose] jurisdiction is compulsory ... [whose] procedure is inter partes ... applies rules of law and ... is independent” can be a court or tribunal which may refer: Case C-53/03 Syfait v GlaxoSmithKlein at 29. Where a body has the right to refer under EU law, this cannot be deprived by national law: Cases 146/73 and 166/73 Rheinmühlen.

The function of the obligation to refer is “to prevent a body of national case law not in accord with the rules of [EU] law from coming into existence in any member state”: Case 107/76 Hoffmann-La Roche v Centrafarm at 5. Both the highest court in a member state and the Benelux court has the obligation to refer: Case C-337/95 Parfums Christian Dior v Evora.

Effects
The ECJ judgment in a reference is declaratory; remedies, costs, etc. are matters for the national court. The ECJ may choose to rule only on the validity and interpretation of EU law, leaving the application to the facts to the national court which made the reference: e.g. Case 36/74 Walrave and Koch v Union Cycliste Internationale. Alternatively, it may choose to rule very closely to the facts in the case: e.g. Case 32/75 Cristini v SNCF.

If ECJ has already rule on a point in a previous case, there is no obligation to refer: Case 28/62 Da Costa. It is then res judicata (at least in the weak sense) and binds the national court a quo which made the reference, and future similar cases on the same issue requires no further reference where the answer is “so obvious as to leave no scope for any reasonable doubt”: Case 283/81 CILFIT, ECJ Rules of Procedure Article 104(3). “Where national legislation has been the subject of different relevant judicial constructions, some leading to the application of that legislation in compliance with [EU] law, others leading to the opposite application, it must be held that, at the very least, such legislation is not sufficiently clear to ensure its application in compliance with [EU] law”: Case C-129/00 Commission v Italy at 33. At least in the United Kingdom, the res judicata is in the strong sense; that is, a previous ECJ ruling binds UK courts: s 3(1) European Communities Act 1972.