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