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.