Preliminary References and judicial review

Article 267 TFEU: Preliminary References

‘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.’

Purpose of the preliminary reference procedure

- It facilitates the uniform interpretation of EU law throughout the EU

- It provides the possibility of indirect challenge to the validity of EU acts
Under EU law, the ECJ has the final say in the in interpretation of EU law
Only the CJEU may declare an EU act invalid; National courts may not do so: 314/85 Foto-Frost [1987]
ECR 4199
- Article 267 is the most important procedural provision in the Treaties:
- It the facilitator of direct effect
- It provides the meeting point for the most important interlocutors of EU law
- It Article 267 together with the doctrine of direct effect result in political power transfer
(Tridimas, Knocking on Heaven’s Door: Fragmentation, Efficiency and Defiance in the
Preliminary Reference Procedure, 40 (2003) CMLRev 1)

What is a ‘court or tribunal’?

• Whether a body is a "court or tribunal of a Member State" is a matter of EU law. The body must
enjoy official recognition or exercise a public function; it must have the power to determine the
legal position of individuals with binding effect.
• In making a determination, the Court will take into account the following criteria (C-45/96 Dorsch
Consult [1997] ECR I-4983):
• whether the body is established by law;
• whether it is permanent;
• whether its jurisdiction is compulsory;
• whether its procedure is inter partes;
• whether it applies rules of law;
• whether it is independent
 • Note difference between Article 267(2) (discretion to refer) and Article 267(3) (obligation to refer)
• A national court of last instance is under no obligation to refer when the issue is acte clair (=clear)
(283/81 CILFIT v Ministry of Health [1982] ECR 3415) or when the ECJ has already ruled on the
question of interpretation referred by the national court

What is acte clair?

• When the correct application of Community law is so obvious as to leave no scope for any
reasonable doubt as to the manner in which the question raised is to be resolved (para 16)
• In this context account should be taken of the peculiar features of Community law, the particular
difficulties to which its interpretation gives rise:
• Multilingual character
• The risk of divergences in judicial decisions within the Community.
• Every provision of Community law must be placed in its context and interpreted in the light of
provisions of Community law as a whole, regard being had to the objectives and its state of
evolution at the date on which the provision in question is to be applied.
• Before it comes to the conclusion that the interpretation of EU law is so obvious as to leave no
scope of reasonable doubt ‘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 those
conditions are satisfied, may the national court or tribunal refrain from submitting the question to
the Court of Justice and take upon itself the responsibility for resolving it (para 16).
• Importance of acte clair

Control of admissibility

• In limited circumstances, the ECJ may refuse to give a ruling if it considers that it is inappropriate
to do so. This includes the following cases:
• Where the referring court has failed to define adequately the factual and legislative context
of the dispute: Joined cases 320-322/90 Telemarsicabruzzo SpA v Circostel [1993] ECR I-393
• Where the question referred is of a hypothetical nature: C-83/91 Meilicke [1992] ECR I-
4871.
• Where the issues of EU law on which the referring court seeks guidance bear no relation to
the actual nature of the case or to the subject-matter of the main action: C-343/90
Lourenco Dias [1992] ECR I-4673; 104/79 Foglia v Novello [1980] ECR 745; 244/80 Foglia v
Novello [1981] ECR 3045; C-318/00 Bacardi- Martini SAS v Newcastle United Football
Company Ltd [2003] ECR-00905

• What remedies exist if a court covered by Article 267(3) TFEU fails to meet its obligation to
make a reference?
• The Commission may bring enforcement proceedings against the Member State:
Commission v France, C-416/17, EU:C:2018:811 (Conseil d’État case)
• It may also render the State liable in damages:
C-224/01Köbler v Austria [2003] I-10239
• Note that in providing an answer to the national court, the ECJ has discretion as the specificity of
its ruling: outcome, guidance, and deference cases.
• What determines the degree of specificity of the Court’s rulings?
• See Tridimas Constitutional Review of Member State action: The virtues and vices of an incomplete
jurisdiction, International Journal of Constitutional Law 9 (2011) 737-756

The importance of Article 267 and the judicial dialogue

 • Express and ‘silent’ dialogue
• (OMT judgment, Weiss case, German FCC; HS2 UK SC)
• Is the relationship between the ECJ and the national courts cooperative or hierarchical?
• Features of the dialogue
• Democracy and the dispersal of judicial power
• The ‘centralized constitutional model’
• See Tridimas, The ECJ and the National Courts: Dialogue, Cooperation, and Instability

Reading on Judicial Review:

· Craig and De Burca, EU Law: Texts, Cases and Materials (OUP 2020) Chapter 15
· Article 263 TFEU
· AG Jacobs’ Opinion in Case C-50/00P Unión de Pequeños Agricultores [2002] ECR I-6677

While there may be doubts about the degree of criticism that can be levelled at the case-law, it is surely
indisputable that access to the Court is one area above all where it is essential that the law itself should
be clear, coherent and readily understandable.

In this Opinion I have argued that the Court should — rather than envisage, on the basis of Greenpeace,
a further limited exception to its restrictive case-law on standing — instead re-consider that case-law
and adopt a more satisfactory interpretation of the concept of individual concern.

· C-583/11P Inuit Tapiriit Kanatami and Others v Parliament and Council, 3 Oct 2013.

Facts: An association of Inuit hunters and trappers of seals, supported by several businesses
processing and selling seal products, sought to challenge a Regulation which had been
adopted by the European Parliament and Council preventing imports into the EU of seal
products on the basis that these were obtained by cruel methods. The General Court had
decided in Inuit Tapiriit Kanatami (Inuit I) that while some of the applicants could be
deemed directly concerned, they were not individually concerned, as the Regulation produced
legal effects regarding categories of persons envisaged generally and in the abstract. Even if
the applicants concerned were covered, in addition to the general prohibition, by the
exception relating to products of Inuit origin, that would not be sufficient to distinguish them
individually in the same way as the addressee of a decision. The applicants therefore initiated
appeals proceedings against the General Court's order. They contended first that the
Regulation was a regulatory act. If this had no success, they contended that the Charter's
entry into force had changed the nature of the test laid down in Plaumann v. Commission.

Held: In the first two limbs of Art. 263(4) TFEU, the word 'act' was generic and capable of
encompassing all types of EU measures, and so the concept of a 'regulatory act' was
necessarily more specific in nature. Looking at the travaux préparatoires it seemed apparent
that the intention of authors was to maintain a restrictive approach in relation to legislative
acts. As such, it was clear that a regulatory act was an act of general application other than a
legislative act, which was not an issue here as the Regulation was a legislative act. The Grand
Chamber then considered that that the wording of the second limb of Art. 263(4) had not
been changed by the Lisbon Treaty, and so the test laid down in Plaumann was unaffected.
The applicants lacked standing as the Regulation's effect was general and applied
indiscriminately to any trader falling within its scope.

In respect of whether the right to judicial protection had been compromised here, it was stated
that the Treaty establishes a complete system of legal remedies and procedures. The Lisbon
Treaty had not aimed to introduce any novel remedies before national courts, but that this
position would change if the structure of the domestic legal system gave no remedy, even
indirectly, to individuals for their EU rights (a responsibility of the Member States).

Questions

1. Under Article 263 TFEU:

a. What are the grounds for review?
b. What is a reviewable act?
c. What is the distinction between privileged, semi-privileged and non-privileged applicants in
respect of “standing”? Explain under which conditions a non-privileged applicant can bring an action
before the CJEU.
2. Do you agree with the approach to individual concern suggested by AG Jacobs in UPA? Did the
Court follow that approach?
3. What does a ‘regulatory act’ mean for the purposes of Article 263(4) TFEU? Explain in light of the
judgment in C-583/11P Inuit

Under Article 263 TFEU, there are four requirements for actions of annulment:
The institution must be reviewable.
The act must be reviewable.
The challenge must be made within the specified time limit.
The individual must have locus standi – this relates to the recognition of a legal interest in a matter.

Reviewable acts are those of the Council, Commission and European Central Bank, other than
recommendations and opinions, and of the European Parliament and European Council intended to
produce legal effects against third parties.

Other institutions, such as the Court of Auditors, European Central Bank and Committee of the Regions
have semi-privileged standing where their prerogatives are not protected. Non-privileged applicants are
individuals. They only have standing in limited circumstances.

Finally, non-privileged applicants, comprising all natural and legal persons, including regional or local
governments, may bring an action for annulment only if they prove that the contested act infringes
upon their interests.

The term "regulatory act" covers all acts of general application apart from legislative acts and includes
implementing measures adopted by the European Commission under the comitology procedure.

Reading on Preliminary Rulings

· Craig and De Burca, EU Law: Texts, Cases and Materials (OUP 2020) Chapter 14
· T. Tridimas, The ECJ and the National Courts: Dialogue, Cooperation, and Instability
· T. Tridimas, ‘Knocking on Heaven’s Door: Fragmentation, Efficiency and Defiance in the Preliminary
Reference Procedure’ (available here )

Questions

1. What are the functions of the preliminary ruling procedure and how well do you think the
procedure fulfils these functions?

The preliminary reference procedure is the process that national courts can use to seek
guidance from the European Court of Justice on the interpretation and meaning of European
Union law. It allows the courts in the Member States to seek a definitive ruling on the meaning
of EU law.
EU law does not have a doctrine of binding precedent such as that entertained in common law
countries. Therefore, a judgment of the CJEU in a preliminary reference procedure is, strictly
speaking, binding only on the national court that submitted the question, as well as on other
courts in the same domestic procedure

2. When and on what basis may a national court exercise discretion to refer a point of Union law to
the Court of Justice for a preliminary ruling?

Article 267 clarifies that courts where there is no further right of appeal are required to make a
preliminary reference to the European Court of Justice if a question of interpretation of
European law is at issue in the case.

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.’

!! A national court of last instance is under no obligation to refer when the issue is acte clair
(=clear) (283/81 CILFIT v Ministry of Health [1982] ECR 3415) or when the ECJ has already ruled
on the question of interpretation referred by the national court

3. When must a national court refer a point of Union law for a preliminary ruling? What are the
exceptions to this obligation?

Under the discretionary reference stipulated in Article 267(2) TFEU, a national "court or
tribunal" may ask the ECJ to give a preliminary ruling if it considers that a decision on the
question is "necessary" to enable it to give a judgment in a particular case.
 !! A national court of last instance is under no obligation to refer when the issue is acte clair
(=clear) (283/81 CILFIT v Ministry of Health [1982] ECR 3415) or when the ECJ has already ruled
on the question of interpretation referred by the national court

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.

4. On what grounds can the Court of Justice refuse to hear a preliminary reference?
In limited circumstances, the ECJ may refuse to give a ruling if it considers that it is inappropriate to
do so. This includes the following cases:
• Where the referring court has failed to define adequately the factual and legislative context
of the dispute: Joined cases 320-322/90 Telemarsicabruzzo SpA v Circostel [1993] ECR I-393
• Where the question referred is of a hypothetical nature: C-83/91 Meilicke [1992] ECR I-4871.
• Where the issues of EU law on which the referring court seeks guidance bear no relation to
the actual nature of the case or to the subject-matter of the main action: C-343/90 Lourenco
Dias [1992] ECR I-4673; 104/79 Foglia v Novello [1980] ECR 745; 244/80 Foglia v Novello
[1981] ECR 3045; C-318/00 Bacardi- Martini SAS v Newcastle United Football Company Ltd
[2003] ECR-00905

• What remedies exist if a court covered by Article 267(3) TFEU fails to meet its obligation to
make a reference?
• The Commission may bring enforcement proceedings against the Member State:
Commission v France, C-416/17, EU:C:2018:811 (Conseil d’État case)
• It may also render the State liable in damages:
C-224/01Köbler v Austria [2003] I-10239

5. What are the effects of preliminary rulings? Are the judgments given by the Court of Justice
binding on the national referring court?

A preliminary ruling binds the national court that requested the judgment as well as all bodies,
which may have to decide the same case on appeal. Although the decision is binding, the court
may request a second preliminary ruling in the same case. Preliminary rulings do not bind courts in
other cases.

Be ready to discuss the following questions:

1. “Establishing a procedure for direct cooperation between the Court of Justice and the national courts,
the system of reference for a preliminary ruling is based on a dialogue between one court and another.
The system is not hierarchical, and the Court of Justice is not an appellate court.”
2. In an effort to alleviate the growing problem of over-population in Europe, acting under Article 114
TFEU, the Council has adopted Regulation 100/2021 (a fictitious measure), Article 3 of which states as
follows:
“All nationals of Member States permanently resident within the European Union shall be executed
upon reaching their eightieth birthday”.
 The Regulation is scheduled to come into force on 1 April 2021. Jonathan, a UK citizen resident in
London, who will turn eighty on 15 April 2021, is naturally alarmed and seeks your advice as to whether
he can challenge this regulation and what are his chances of success.