PRELIMINARY RUILING

Question 1

BASICS

Answer 1

• important in everyday application of EU law (1/2 workload of court)
• helped create fundamental concepts of EU law institutional and substantive law
• role of court of justice is to assist national courts in interpreting EU law
• preliminary ruling is not an appeal from national courts
• only court of justice has jurisdiction to deal with references of preliminary ruling

Question 2

SCOPE

Answer 2

• art 267 TFEU references for preliminary ruling may deal with:
• interpretation of treaties and all sources of primary law
• interpretation and validity of EU secondary legislation
• references also deal with interpretation of soft law international agreements as well as judgements of the court of justice
• doesn’t interpret national law

Question 3

REFER

Answer 3

• 267 any court or tribunal may send reference
• in majority of cases there is no doubt that a body submitting a reference is a court/tribunal of a MS
• however for cases when in doubt eg a hybrid body between executive and judiciary the court of justice has developed a test
• leading authority dorsch consult

Question 4

DORSCH CONSULT CASE

Answer 4

When in doubt receives reference from unclear authority will look if that body is:

• established by law
• permanent
• has compulsory jurisdiction
• procedure inter partes (has claimant and defendant)
• if it applies rules of law
• and independent

Question 5

RIGHT/OBLIGATION TO REFER

Answer 5

• some courts have a right and some have obligation
• art 267 TFEU courts from which there is no further remedy have the obligation to refer while other courts have the right
• doctrine of acte Claire courts where there is a further remedy are released from obligation to refer if interpretation does not raise doubts (283/81 CILFIT)

Question 6

EFFECTS OF JUDGEMENTS

Answer 6

• judgements binding on referring courts and courts in other MS
• there is nothing stopping such court/courts handling the case in the next instance from submitting further references to the court
• one must not overestimate the courts role it will often only provide national judges with a set of tools not a definite answer to problem at hand