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Answering - workshop

“[a body which] performs its duties with

the approval of the public authorities and
operates with their assistance, and whose
decisions are accepted following
contentious proceedings and are in fact
recognised as final, must be deemed to be
a court of a Member State...”
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Aims

To examine the The purpose and To examine the To understand To examine the
scope of PR binding effect of role of national the admissibility development of
PR courts of questions; to precedence i.e.
evaluate the doctrine of acte
difference clair.
between those
courts or
tribunals which
‘may’ seek a PR
and those that
‘shall’ do so.
6.- Admissibility of the
reference
In principle CJEU bound to give a ruling,
• but, it may decline a case if deemed inadmissible,
e.g.

01 02 03
no genuine dispute no relevance of the insufficient
(Foglia v Novello), referred question to legal/factual
the problem is the dispute information
hypothetical (Agafiţei) (Telemarsicabruzzo)
(Meilicke)

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Guidance on references by national courts:

Recommendation to
national courts and
applicable national
tribunal in relation to Summary of facts; law + case law;
the initiation of
preliminary ruling
proceedings’ + reason for the summary of
CJEU’s Rules of reference: relevant parties’
to EU law; arguments; and
Procedure.

if possible, to state
its view.
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The Substance of the questions referred

Line between interpretation and application

is not always clear.

The more detailed the interpretation

provided by the CJ, the closer it
approximates to application. Neither advise
Nor order

Common for the CJ to give ‘guidance’ to the

national court as to how the point of law
should be applied in the case (e.g. Cristini).
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Outcome cases

• give an answer so specific that it leaves the

referring court no margin for manoeuvre i.e. a
ready-made solution to the dispute

Guidance cases

• provide the referring court with guidelines as to

how to resolve the dispute

Deference cases

• answer the question in such general terms that,

in effect, it defers to the national judiciary on the
point in issue
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7.- Discretionary Reference

Conclusive to judgement (

Lower courts (Art 267 para 2 TFEU)

‘Widest’ discretion (Rheinmühlen).

Parties/public authorities may
Bollinger)

“...if it considers that a decision interfere BUT cannot force to refer.

on the question is necessary to
enable it to give judgment...”
National procedural rule cannot
prevent a national court
(Rheinmühlen).
Can refer at any stage of the
proceeding (Simmenthal).

national judge to refer if parties have not raised the issue, or

not refer even if requested.
 8.- Mandatory references –Art
267 para. 3 TFEU

“against whose decisions there is no judicial remedy under national

law...”
‘abstract theory’ vs ‘concrete theory’
• CJ has favoured the concrete theory...but see Lyckeskog (leave to
appeal could be refused).
• Highest court for the case (Costa v ENEL) rather than the highest
court in the member state.

Impose an obligation upon courts of last instance.

• The obligation is not because the lower national courts adjudicating on
the case adopted contradictory decisions (João Filipe Ferreira da Silva e
Brito and Others v Estado português (Case C‑160/14)), it is because