ART 267: PRELIMINARY RULINGS

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.