Art.267 TFEU Reference Procedure

Question 1

Structure

Answer 1

1. Court or Tribunal
2. Decision on Point of EU Law Necessary
3. Discretion of National Courts
4. Discretion of ECJ

Question 2

DORSCH CONSULT - Any “court or tribunal” may make a reference - Relevant Factors:

Answer 2

• Body is established by law
• Enforces / Applies rules of law
• Is of Compulsory Jurisdiction
• Is Independent
• Proceedings are inter partes (all parties given a hearing)
• Body is permanent

Question 3

Not all DORSCH CONSULT factors need be present, just a significant number

Answer 3

BROEKMEULEN v HIUSARTS

Question 4

CILFIT criteria - A decision is not necessary if:

Answer 4

• The point of EU Law is irrelevant to deciding the case
• Has been decided by the ECJ already elsewhere (limited situations it can still refer - DA COSTA)
• The point is too obvious for reasonable doubt across member states (Doctrine of Ante Clair)

Question 5

Court of Mandatory Jurisdiction

Answer 5

Final instance courts Must Refer points of EU law they cannot decide

Question 6

A Court of Mandatory Jurisdiction includes highest court for that type of case

Answer 6

COSTA v ENEL

Question 7

If NC does not refer - ECJ will not intervene - Individual may bring a claim under State Liability

Answer 7

KOBLER

Question 8

Court of Permissive Jurisdiction

Answer 8

May Refer

Question 9

Court of Permissive Jurisdiction - ECJ Guidelines - A higher NC will not prevent a lower NC from referring

Answer 9

RHEINMUHLEN-DUSSELDORF

Question 10

Court of Permissive Jurisdiction - ECJ Guidelines - A national court cannot declare a piece of EU law invalid - If in doubt - Refer

Answer 10

FOTO-FROST

Question 11

Court of Permissive Jurisdiction - ECJ Guidelines - It is up to national courts to decide what stage of proceedings to refer; usually decide facts of case and issues of national law first

Answer 11

IRISH CREAMERY MILK SUPPLIERS ASSOCIATION

Question 12

Court of Permissive Jurisdiction - National Guidelines - Courts must make a reference unless they can answer question in “complete confidence”

Answer 12

EX P ELSE

Question 13

Court of Permissive Jurisdiction - National Guidelines - Courts must show restraint in relation to wishes of parties, ECJ work load and general importance of the point

Answer 13

TRINITY MIRROR

Question 14

ECJ Reference Refusal - No genuine dispute (will not rule on artificial cases aimed at getting a ruling)

Answer 14

FOGLIA v NOVELLO

Question 15

ECJ Reference Refusal - Insufficient factual background or relevant national law

Answer 15

TELEMARSICABRUZZO v CIRCOSTEL

Question 16

ECJ Reference Refusal - Only substantive points of EU law addressed, not interpreting national laws - That is up to NCs

Answer 16

COSTA v ENEL

- May reword question as per VAN GEND