Article 267 Procedure

Question 1

6 criteria to decide whether a body is a court/tribunal? Case.

Answer 1

Dorsch Consult:
1. Compulsory jurisdiction? 2. Established by law? 3. Apply rules of law? 4. Inter partes procedure? 5. Independent? 6. Permanent.

Question 2

How will borderline court/tribunal cases be decided? Case.

Answer 2

If a significant number of the factors in Dorsch Consult are present, that will be sufficient - Broekmuelen.

Question 3

3 factors to decide whether an Article 267 reference is ‘necessary’? Case.

Answer 3

CILFIT: reference will not be necessary where:

1. Not relevant to conclusion of case.
2. ECJ has already ruled on it.
3. So obvious that reference not required (‘acte clair’ principal).

Question 4

What is a court of mandatory jurisdiction? Case.

Answer 4

Highest court in national system for that type of dispute - Costa v ENEL.

Question 5

If a court of mandatory jurisdiction fails to make an Article 267 reference, what is the consequence? Case.

Answer 5

Claimant may bring an action for state liability - Kobler v Austria.

Question 6

2 ECJ viewpoints on whether court of permissive jurisdiction should make a reference?

Answer 6

1. ‘Particularly useful’ to do so - ECJ Information note.

2. Should do, because national courts cannot declare EU law invalid - Fotofrost.

Question 7

2 UK viewpoints on whether court of permissive jurisdiction should make a reference? Cases.

Answer 7

1. Should do unless court can answer question ‘in complete confidence’ - ex parte Else.
2. Should not overload the ECJ - Trinity Mirror.