Courts (distinction between 2 types)

    • “court/tribunal”?
      • Dentist Airdrie v Administration des Contributions, 1993: whether body is court/tribunal is question of EU law! Here, ECJ held that tax administration is not court within sense of art 267.
      • Almelo, 1994: to be court/tribunal, body must:
        • Be established by law
        • Have permanent existence
        • Exercise binding jurisdiction
        • Be bound by rules of adversary procedure: Cartesio case, 2008: though art 267 does not require proceedings to be inter partes, ref can only be made if there is case pending before nat court, leading to decision of a judicial nature.
        • ➔ can’t make prelim ref for what is essentially an administrative decision that doesn’t resolve legal dispute!
        • Apply rule of law
        • Be independent.
      • Further requirements in other cases:
          • Broekmeulen v Dentist Airdrie, 1981: must exercise official authority (general medical council was final appeal body, despite being private association. So yes!). If under MS’ legal system, task of implementing EU provisions is left to professional body acting under degree of govt supervision, and that body, in conjunction with the public authorities, creates appeal procedures potentially affecting EC rights, then it is essential that ECJ can rule on issues of interpretation/validity arising out of such proceedings.
          • Borker, 1980: must have judicial role
          • Norse, 1982: must be closely linked to organisation of legal remedies through nat courts – private arbitration tribunal usually isn’t, unless it is endorsed by public authority (eg. Under Swedish labour law). But note in Almelo, 1994: body hearing appeals against arbitration award = court/tribunal)


  • Perfumes Christian Dior, 1997: can be court common to >1 MS – Benelux court on trade marks. But must be from a MS.
  • Arbitration context? Depends on the nature of the arbitration; not sufficient just that body gives judgment according to law, and award is binding between parties. Must have closer link between arbitration procedure and the ordinary court system!




  • Which courts or tribunals can refer? (art 267(2)) – discretion!


      • Discretion to refer where Union law qn is raised in case pending before any national court (Zabala Erasun v INEM, 1995)
      • Rheinmuhlen, 1974: “national courts have the widest discretion” – not restricted by EU law , in the spirt of cooperation
      • ➔ recall AG Jacobs’ criticism – said prelim ref not real alternative to direct challenges cos of nat courts’ wide discretion.
      • Pigs Marketing Board v Redmond, 1978: nat court has discretion to refer “if it considers that a decision on the question is necessary to enable it to give judgement”
      • ➔ but Leclerc, 1995; it is nat court, having knowledge of the facts, which is in best position to decide on necessity of prelim ruling to give judgment. Hence, if nat court refers, Court will in principle be bound to give judgment.
      • But note nat court’s discretion only extends to whether or not to make prelim ref, not to composition of question – ECJ can request more info to decide which questions to answer


Basics of the Preliminary Reference System

    • Historical introduction: rare for international org to enter into direct correspondence with MSs. At that time, EC law was thought to be specialised area – hence need to refer questions of interpretation to specialised courts. Manchester Taxi 1928 vs Crawford 1990 So started off with horizontal relationship – but now, moving to be one of vertical hierarchy
      • Simmental, 1976: emphasis that r/s is one of cooperation (horizontal) not hierarchy – ECJ not empowered to investigate facts/look at grounds and purpose for request. However, in this case, ECJ said where question of EU law is decided, it is automatically applicable to all MSs – not just to the MS which requested for it.


  • Significance:


      • Became vehicle through which important Union law concepts were developed (eg. Supremacy in Costa v ENEL, direct effect in Van Gend en Loos).
      • Also means of indirect review of acts of EU institutions (Comm v Jego Quere, 2004).
      • Necessary to ensure uniform application of EU law (International Chemical Corporation v Amminstrazione delle Finanze, 1981). ECJ enjoys advantages over nat courts in ensuring uniform application:
          • Panoramic view of Union/institutions
          • Detailed knowledge of Treaties/subordinate legislation
          • Familiarity with the functioning of the Common market
          • Can receive submissions from other Union institutions/MSs can intervene


  • Can better address comparisons between language versions of text, being multi-nat court.
  • What questions can be referred? Two types


      1. Questions on the interpretation of the Treaty (art 267(1)(a))
        • Wider. ECJ has given many seminal judgments on DE and supremacy under this
      1. Questions relating to validity and interpretation of EU actions (art 267(1)(b)) – eg. Where C argues that EU Reg gives rise to rights directly enforceable in nat courts.
        • For interpretation, ref can be made to clarify even non-legally-binding provisions (even for non-binding acts) – Grimaldi case, 1989. Hence, open approach
        • But for validity, only includes all EU acts having binding effect, excluding Treaties (Les Verts: treaties are constitutional charter of Union, and ECJ does not have jurisdiction over Treaty validity). Also excluding ECJ’s case law (Wunsche, 1986: must use proper review procedure to challenge previous ECJ judgements, cannot use prelim ref procedure)

Also includes issues of invalidity of EU law. This is issue for ECJ, not nat court, to decide.

The Moral Scale

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  • As considering whole range of moral issues, we may conveniently imagine a kind of scale or yardstick which begins at bottom with most obvious demands of social living and extends to highest reaches of human aspiration.
    • “Somewhere along that line there is an invisible pointer where the pressure of duty leaves off and the challenge of excellence begins.”[10]
    • War of moral argument is over location of this pointer.
    • To find it, must know what is perfect life – if you accept this, then drawing line is pointless because MOD must borrow standards from MOA.
      • This view has led to diametrically opposed conclusions concerning the objectivity of moral judgments.
        • One side: Fact of experience that we know and agree on what is bad, thus must follow that we have shared picture of what is perfectly good (Platonic Socrates)
        • Other side: Men do not agree on what is perfectly good, our apparent agreement of what is bad is perhaps an illusion, born of social conditioning, habituation, and shared prejudice.
        • Both rest on idea: must know good to know bad
  • In whole field of human purpose, we find rejections of idea that we must know perfectly good to identify the bad
    • E.g No human tool is perfectly suited to any task, but designed to accomplish indefinite range reasonably well.


    • MOA
      • Q: Is it activity worth of man’s capacities? Answer: No, it’s a kind of fetish, enjoying cultivation of risk for its own sake, not in the pursuit of, eg,  some higher artistic aim. So, gambling unfit for humans.
      • MOA as law maker?: No direct bearing at all. Law cannot compel man to live up to excellences of which he is capable.  
      • For workable standards  MOD – look into Dentist Calgary
      • But MOA has pervasiveness of its implications: rules of contract and tort, some key principles were not present in early stages of law but now are and represents the fruit of centuries old struggle to reduce the role of the irrational in human affairs.
      • Still, no may to compel reason, only seek to exclude from his life grosser and more obvious manifestations of chance and irrationality.


  • Content of chapters – because unhappy with existing literature about relation between law and morality. Two major deficiencies:
    • 1. Failure to clarify the meaning of morality itself. It is assumed we all know what morality means! But that is not the case.
      • In chapter 1, I try to redress this by highlight distinction between morality of duty + morality of aspiration.
    • 2. Neglect for Morality that makes law possible. Focus on “legal justice”, treat like alike, but little recognition that problem thus adumbrated is only one aspect of much larger problem – clarifying directions of human effort essential to maintain any system of law, even one whose ultimate objectives may be evil.
  • Chp. 3 attempt to bring the analysis of the first two chapters into relation with various schools of legal philosophy.
  • Chp4 seeks to show how proper respect for internal morality of law limits kinds of substantive aims that may be achieved through legal rules – closes by showing how something like a substantive “natural law” may be derived from the morality of aspiration.

The Moralities of Duty and Aspiration as seen in abogados de accidentes de carro

  • Distinction between morality of aspiration and morality of duty
    • Morality of aspiration most plainly exemplified in Greek philosophy: it is the morality of the Good life, or excellence, of fullest realisation of human powers.
    • May be overtones of duty to get there, and if fail to realize fullest capacities, he would be found wanting, not for being recreant to duty, but for shortcoming, not wrongdoing.
    • Rather than right or wrong, we have beseeming conduct.
  • Morality of aspiration starts at TOP of human achievement, morality of duty starts at BOTTOM (ie, lays down basic rules necessary for society)
    • MOD = Old Testament morality “thou shall”, “thou shall not”. Condemns men for failing to respect basic requirements of social living.
  • Metaphor to help distinguish MOD and MOA:
    • MOD = rules of grammar
    • MOA = rules of what is sublime and elegant composition of writing. (these are more vague that basic rules of grammar)
  • How would moralities view gambling?
    • MOD
      • hypothetical moral legislator would have to decide if gambling harmful so as to refrain from engaging in it.
      • Would realise that marginal utility not good with gambling.

Article 8

Where a particularly important facet of an individual’s existence or identity is in issue under Art 8,
the court will be less likely to accept that a contracting party should be afforded a broad discretion
and margin of appreciation e.g. X and Y case (young mentally handicapped girl who had been
sexually assault yet only a civil claim possible: breach of Art 8); Z v Finland (fundamental importance
of medical data); and Dudgeon (homosexual activity- sexuality most intimate part of one’s identity;
despite morality usually being large margin of appreciation).
Where two parties’ rights in issue e.g. Evans (wish of women to become pregnant using embryos
frozen vs man’s right- consent of both required: wide margin of appreciation as legislative scheme
had come after a lot of consideration, consultation and debate).
S and Marper – retaining of DNA data but UK alone in adopting such an extensive scheme so no wide
margin of appreciation.
Handyside – large margin where areas of morality.
Cases where wide margin of appreciation allowed because of lack of common ground in Europe can
(e.g. Rees – changing entries on birth certificates; cf Dudgeon- no longer appropriate in most states
for homosexual practices to have criminal sanctions) be seen as further examples of the principle
that the nature of the individual right determines the breadth of the margin since a divergence in
national law may indicate that the nature and degree of importance of the individual interest is still
in the process of being understood, recognised and accepted.