⇒ Most cases arrive before the court through the preliminary rulings/references procedure

⇒ Its purpose is to secure uniformity in the EU legal order (Futtermittel (No 1) [1974])

⇒ CILFIT Case [1982]: Preliminary rulings are another example of Article 4(3) → principle of sincere cooperation between the EU and the Member States

⇒ Court said there should be a real and fruitful collaboration between the courts of the Member States and CJEU: they are partners in the development of EU law (Robert Bosch case)

⇒ Preliminary reference is NOT an appeal → It is NOT an hierarchical relationship

• So this principle of judicial autonomy is intended to create a relationship of equality and dialogue between the courts.

⇒ A shared jurisdiction between the EU and the Member States.

⇒ National Courts are the primary enforcers of EU law. Hence why they are called preliminary rulings i.e. they precede the application of EU law by the national court.

• If the national court is not satisfied with ECJ’s answer it can Ping-Pong questions and answers with them i.e. they can engage in a discussion/dialogue/partnership (Munich University case [1991])

⇒ Article 267: CJEU has jurisdiction to give preliminary rulings concerning:

• (a) The interpretation of the Treaties;
• (b) The validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;

⇒ So questions relating to the TEU, TFEU, Charter AND questions relating to secondary law can be referred e.g. regulations, directives etc.

• The ability to refer questions regarding recommendations was seen in the case of Grimaldi [1989]

⇒ Only the ECJ can rule on the validity of EU law (Foto-Frost v Hauptzollamt [1987]) – this means, therefore, Member States cannot!

⇒ The CJEU CANNOT consider questions of national law under Artispanle 267

⇒ The national court refers questions regarding the interpretation of EU Law to the CJEU and the CJEU answers those questions in abstract form.

⇒ National courts then apply those answers to the particular problem they have before them, with matters of procedure being for national courts (Comet [1976] and Rewe [1976]), but this is subject to 2 things:

• 1) EU Law claims must not be treated less favourably than national claims; and,
• 2) There must be an effective remedy for the enforcement of EU law (Article 19 TFEU)
• Member States are therefore required to provide sufficient domestic remedies to ensure EU law is effective e.g. the Factortame case concerned the availability of interim relief against the Crown which historically hadn’t been available in our domestic law

⇒ This is not an appeal procedure because:

• It is not up to parties to invoke it (national court just gets interpretative help)
• The CJEU does not concern itself with the facts, just the abstract point of law (Van Gend en Loos [1964])
• The CJEU does not rule on the validity of national law (Van Gend en Loos [1964])

⇒ Binding effect?

• Does have binding effect on the referring courts (Benedetti v Munari [1977]), but does NOT bind the parties to the proceedings
• The common law view is that the rulings are de facto precedence on all courts in MS – the law is uniform and to be consistent. This fits in nicely with the doctrine of acte clair
• The civilian approach is that rulings/references don’t create new authority, they merely clarify the law – so this is a declaratory approach to the cases
• It is the second rule (civilian rule) that, not surprisingly given antecedence of the Court of Justice, it inclines to
• Amministrazione delle Finanze v San Giorgio [1980] → in preliminary references the court “clarifies and defines where necessary the meaning and scope of that rule as it must be or ought to have been understood and applied from the time of its coming into force.”

⇒ Any court or tribunal within the legal system of the Member State is qualified to refer questions under Article 267

⇒ Dorsch [1977] lists useful criteria as to what a court/tribunal is:

• A “tribunal” is established by law; it is permanent; it has an adversarial procedure; it applies the Rule of Law; it is independent and impartial
• The jurisdiction of a “tribunal” is compulsory

⇒ The following tribunals have been allowed to ask for a preliminary ruling:

• Administrative tribunal (Van Gend en Loos [1964])
• Appeals Committee for General Medicine (Broekmeulen v Huisarts [‘81])
• BUT not: Tribunal established by contract (Nordsee v Reederei Mond [1982])

⇒ Preliminary rulings can be sought by all courts in Member States, not just the most superior court (Rheinmuhlen case [1974])

⇒ The court/tribunal may, if it considers a decision on a question necessary to enable it to give judgment, request the CJEU to give a ruling thereon (Art 267(2) TFEU)

⇒ A flexible approach to preliminary rulings is taken by the CJEU → when and how it decides to refer a question is entirely up to the national court (Irish Creamery Milk suppliers v Gov of Ireland [1981])

• BUT: If the validity of an EU provision/act is at stake, there is an obligation to refer (Foto Frost [1987])

⇒ However, if the case is pending before a court/tribunal of a Member State against whose decisions there is no judicial remedy under national law (e.g. the Supreme Court (UK)), that court/tribunal shall bring the matter before the CJEU – Art 267(3) TFEU

⇒ The purpose of Article 267(3) is to prevent the emergence of a body of national law not in accordance with EU law (Hoffman-La Roche v Centrafarm [1977])

⇒ YES the CJEU has the discretion to refuse to hear a preliminary reference. It will refuse to hear a reference in the following situations:

• Clear lack of jurisdiction, i.e. purely internal matter having nothing to do with the EU (Hermes Hitel 2012)
• Contrived cases, i.e. no real dispute between the parties (Foglia v Novello (No 1) [1980] and No 2 [1981])
• Where the case is hypothetical (Borker [1980)
• Where the question is irrelevant to the actual case (CILFIT [1982])
• When the court cannot understand the referred question (Telemarsicabruzzo v Circostel [1993])
• Where there is not enough information (FRBSB [2000])
• Where the national court asks about the validity of judgments of the CJEU (Wünsche v Germany [1986])
• When the CJEU has already answered the question (Da Costa [1963])
• Correct interpretation is so obvious as to leave no scope for reasonable doubt (known as acte clair) (CILFIT [1982])
• Proceedings already terminated in the national court (Pardini [1988])

⇒ The CJEU answers on a point of law and not on the facts, although it does so at times (Stoke on Trent and Norwich City Councils v B&Q [1992])

⇒ The CJEU doesn’t explain whether the national law conflicts with EU law but provides an explanation of the EU law that necessarily implies national law conflicts or not

⇒ Binding on national court that sent the question and on all courts in all EU States (ICC v Amministrazione delle Finanze [1981])