PRELIMINARY RULINGS PROCEDURE Article 234 EC Treaty Lecture

PRELIMINARY RULINGS PROCEDURE Article 234 EC Treaty

Lecture Aims • Understand the purpose of the preliminary rulings procedure • Know how the preliminary rulings procedure operates • Understand the circumstances in which a preliminary ruling is not ‘necessary’

Overview of procedure • Increasing number of cases, before the national courts, concerning Community law • National court may be faced with question of interpretation of the Community law provision • National court may seek a preliminary ruling on the point of law from the ECJ • National proceedings are adjourned pending ruling from ECJ • Interlocutory procedure

Article 234 (ex 177) • The Court of Justice shall have jurisdiction to give preliminary rulings concerning: – (a) the interpretation of this Treaty; – (b) the validity and interpretation of acts of the institutions of the Community and of the ECB; – (c) the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide. • Where such a question is raised before any court or tribunal of a Member state, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of justice give a ruling thereon. Where such a question is raised in a case pending before a court or tribunal of a Member state, against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice. •

Purpose of the preliminary rulings procedure • to secure uniformity in the interpretation of Community law • Case 13/61 De Geus – “The progressive integration of the Treaty into the legal, social and economic life of the Member States must involve more and more frequently the application and, when the occasion arises, the interpretation of the Treaty in municipal litigation…the provisions of Article 234 must lead to a real and fruitful collaboration between the municipal courts and the Court of Justice”

Purpose of the preliminary rulings procedure • Case 166/73 Rheinmühlen – “Article 234 is essential for the preservation of the Community character of law established by this Treaty and has the object of ensuring that in all circumstances the law is the same in all States of the Community” • the ECJ has a “panoramic view” of the Community and Community law

Preliminary rulings • Interlocutory procedure • Shared jurisdiction • National court ‘adjourns’ and ‘question(s)’ submitted to ECJ • ECJ provides ‘preliminary ruling’ to national court • National rules on the facts and decides outcome of the case • NOT an appeals procedure

Jurisdiction • The Court of Justice shall have jurisdiction to give preliminary rulings concerning: – (a) the interpretation of this Treaty*; – (b) the validity and interpretation of acts* of the institutions of the Community and of the ECB; – (c) the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide. – *Treaty includes EC Treaty and all amending Treaties, also limited jurisdiction in relation to EU Treaty (Treaty on European Union) – *Acts of institutions includes EC regulations and directives

PRELIMINARY RULINGS • The interpretation of the Treaty • The validity and interpretation of acts of the institutions (regulations/directives/ decisions) • Not the validity of national law or the compatibility of national law with EC law – Case 26/62 Van Gend en Loos – Case 6/64 Costa v Enel • Not on the application of the Treaty • Not on the facts of the case

PRELIMINARY RULINGS • Arsenal Football Club v Reed [2002] All ER (d) 180 – English High Court expressed ‘concern’ about ECJ preliminary ruling (in Case C 206/01)

Any Court or Tribunal • Matter of Community law/national categorisation not conclusive • Case 246/80 Broekmeulen (Dutch Appeals Committee for General Medicine) • medical appeals tribunal • Case 102/81 Nordsee Deutsche Hochseefischerei • not an independent arbitrator

Any Court or Tribunal • Cases C 74 & 125/95 Criminal Proceedings against X • not an Italian prosecutor (not sufficiently independent) • Case C-416/96 El -Yassini v Secretary of State for the Hope Department • Immigration Adjudicator

Any Court or Tribunal of a Member State • Case 61/65 Vaassen • Established by law • must be judicial in nature (makes legally binding decisions) • inter partes procedure • have degree of permanence • be ‘recognised’ by the state (some form of statutory origin) • Criticism by Advocate General Colomer in Case 17/00 de Coster

ARTICLE 234 • Paragraph (2) Courts which may seek a ruling - if the court considers that a decision on the question is necessary to enable it to give judgment • Paragraph (3) A court shall seek a ruling if the question is raised in a court “against whose decision there is no judicial remedy”

Discretionary referral • Article 234 (paragraph 2) • Entirely for the national court to decide whether it is necessary and also whether to refer • Case 166/73 Rheinmühlen - a national court cannot be deprived of its power to refer by rulings of superior courts

Mandatory Referral • Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decision there is no judicial remedy under national law that court or tribunal shall bring the matter before the court.

Article 234 (3)-which courts? • Abstract theory • Concrete theory • courts from which there is never a right of appeal • whethere is no right of appeal in the type of case in question – House of Lords – Conseil d’Etat (France)

Article 234 (3)-which courts? • Abstract • Bulmer v Bollinger [1974]“short of the House of Lords, no other English court is bound to refer a question. . . ” per Lord Denning • Concrete • Case 6/64 Costa v ENEL ”national courts against whose decisions, as in the present case, there is no judicial remedy, must refer the matter to the Court of Justice” ECJ in relation to Italian magistrates’ court

Article 234 (3)-which courts? • Case C-99/00 Lyckeshog – ECJ returned to the reason why Art 234 (3) had been includedto prevent a body of national case law, not in accordance with Community law, from coming into existence – However ECJ held that courts are not final courts for these purposes where leave to appeal from their judgement is required – “the fact that examination of the merits of such appeals is subject to a prior declaration of admissibility by the supreme court does not have the effect of depriving the parties of a judicial remedy” Paragraph 16

ART 234(3)-Mandatory referral • Does this mean that a national court that falls within this paragraph MUST refer every question of Community law that it encounters? • Text of Art 234 (3) suggests that the answer is yes“Where any such question … shall bring the matter before the court. ” • The answer is in fact NO. • Courts falling within this paragraph are only obliged to seek a preliminary ruling (the ‘shall’ still operates) where the court considers the ruling is necessary.

Case 283/81 CILFIT Srl • Case before Italian Supreme Court (the Cassazione) ( a court falling within Art 234 (3)) • Question in the proceedings had already been addressed by ECJ in earlier case • Was the Italian court still bound by Art 234 (3) to seek a ruling even where it had no doubt as to the meaning of the provision because the ECJ had already given a ruling?

When will it be necessary? • Case 283/81 CILFIT Srl – “it follows from the relationship between the second and third paragraphs of article 177 [now 234] that the courts or tribunals referred to in paragraph 3 have the same discretion as any other national court or tribunal to ascertain whether a decision on a question of Community law is necessary to enable them to give judgment” – all national courts and tribunals have the same discretion in deciding whether a question of Community law was necessary to enable them to give judgment – Only difference is that courts that fall into Art 234 (3) are obliged to seek a PR if they conclude that one is necessary, whereas lower courts are not obliged.

When will it be necessary? • ECJ addressed this in Cilfit by looking at when it will not be necessary • The first thing that has to be established is that there is a question of Community law

Where any such question is raised (CILFIT Srl) • There must be a question relating to the interpretation of Treaty or acts of the institutions • the fact that a party contends that the dispute gives rise to a question concerning the interpretation of Community law does not mean that the court (or tribunal) is compelled to consider that a question has been raised • a national court may, in appropriate cases, refer a matter of its own motion

CILFIT Criteria • It will not be necessary to refer a question where – (a)the question raised was not relevant – (b) where the question is relevant then the national court should consider whether previous decisions of the Court have already dealt with the point of law in question – (c) where the correct application of Community law is so obvious so as to leave no scope for reasonable doubt- acte clair

The question must be relevant • Case 283/81 CILFIT Srl • national courts. . are not obliged to refer …a question concerning the interpretation of Community law raised before them if that question is not relevant, that is to say, if the answer to that question, regardless of what it may be, can in no way affect the outcome of the case

Has there already been a previous ruling? • Cases 28 -30/62 Da Costa v Nederlandse Belasting Administraitie – “ the authority of an interpretation under[Article 234] already given by the Court may deprive the obligation of its purpose and thus empty it of its substance… – such is the case especially when the question is materially identical with a question which has already been the subject of a preliminary ruling” • Case 283/81 Cilfit Srl – “where previous decisions of the Court have already dealt with the point of law in question, irrespective of the nature of the proceedings which led to those decisions, even though the questions at issue are not strictly identical”

Cilfit Criteri-Acte clair • (c) where the correct application of Community law is so obvious so as to leave no scope for reasonable doubt • acte clair • doctrine from French administrative law • where a provision of law is so clear no question of interpretation arises • if a national court concludes that a point of Community law is acte clair then it is not necessary to seek a preliminary ruling

Acte Clair • “Finally, the correct application of Community law may be so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved. Before it comes to the conclusion that such is the case, the national court or tribunal must be convinced that the matter is equally obvious to the courts of the other Member states and to the Court of Justice. Only if these conditions are satisfied may the national court or tribunal refrain from submitting their question to the Court of Justice and take upon itself the responsibility for resolving it”. Paragraph 16

Acte Clair • Community legislation drafted in different languages and the different language versions are equally authentic • Community law uses terminology peculiar to it • legal concepts have different meanings in Community law and the law of the Member States • every provision of Community law must be placed in its context and interpreted in the light of the provisions of Community law a whole

CILFIT Criteria • Courts of last resort not obliged to seek a ruling where (see paragraph 21) – the question raised was not relevant – where the question is relevant then the national court must consider whether previous decisions of the Court have already dealt with the point of law in question – where the correct application of Community law is so obvious so as to leave no scope for reasonable doubt

CILFIT criteria • Also apply to Courts not covered by paragraph 234 (2)-in short applies to all national courts and tribunals • ECJ also makes it clear that, not withstanding the Cilfit guidelines “ it must not be forgotten that in all such circumstances national courts and tribunals. . . remain entirely at liberty to bring a matter before the Court of Justice if the consider it appropriate to do so” Paragraph 15.

Validity • Case 314/85 Foto Frost v Hauptzollamt Lübeck-Ost – “Divergences between courts in the member states as to the validity of Community acts would be liable to place in jeopardy the very unity of the Community legal order and detract from the fundamental requirement of legal certainty”.

When to refer • At discretion of national court • Preferable if the facts have been decided and legal issues clarified • Case 36/80 Irish Creamery Milk Suppliers v Government of Ireland • national court must define factual and legal circumstances in which the question arises Case • C-320 -322/90 Telemarsicabruzzo Sp. A • cannot be made after the principal issue has been decided • Case 338/85 Pardini

When to refer • Enormous delay (18 months – 2 years) • Costs • Views of the parties (although ultimately for national court to decide)

Refusals to give rulings • Case 104/79 Foglia v Novello (No. 1) ECJ will not give rulings in relation to hypothetical questions (ECJ decided the dispute was contrived and not a genuine dispute) – “arranged by the parties in order to induce the Court to give its views on certain problems of Community law which doe not correspond to an objective requirement inherent in the resolution of a dispute”

Refusals to give rulings • Case 244/80 Folglio v Novello (No. 2) – Refusal to give a ruling in relation to hypothetical questions – ECJ will not give advisory opinions – ECJ reserves the right to examine where necessary, (in order to confirm its own jurisdiction), the reasons given by the national court for seeking a ruling • Case C-83/91 Meilicke v ADV/ORGA – Question not relevant to the proceedings

Refusals to give rulings • Where question not relevant • Case C-62/93 BP Supergas v Greece • Where national court failed to articulate the questions or failed to sufficiently define legal and factual context of the case • Cases C-320 &321/90 Telemarsicabruzzo v Circostel

Effect of a preliminary ruling • Binding on the national court in the case in which the ruling is sought • However see Arsenal v Reed [2002] • In the light of Article 10 EC Treaty which requires the state (including national courts) to ensure fulfilment of obligations arising out of the Treaty- hence national courts are under obligation to comply with earlier decisions of the ECJ

The Preliminary Rulings Procedure • “a stroke of genius”- Arnull • “ the jewel in the Crown” Craig & De Búrca – Supremacy – Direct effect – Indirect Effect – State Liability

Problems with Preliminary rulings • Significant delays • Associated problems of costs and impact on national cases • Proposals for reform – The Future of the Judicial System of the European Union (Proposals and Reflections) (May 1999) – Due Report (Report by the Working Party on ‘The Future of the European Communities’ Court System’ (January 2000)

Article 225 (3) EC (Post Nice) • The CFI shall have jurisdiction to hear and determine questions referred for a preliminary ruling…in specific areas laid down by the Statute. • Where the CFI considers that the case requires a decision of principle likely to affect the unity or consistency of Community law, it may refer the case to the [ECJ] for a ruling. • Decisions given by the CFI on questions referred for a preliminary ruling may exceptionally be subject to review by the [ECJ], under the conditions and within the limits laid down by the Statute, where there is a serious risk of the unity or consistency of Community law being affected.

Conclusions • Preliminary rulings procedure designed to ensure uniform interpretation of Community law throughout European Union • Article 234 defines jurisdiction of ECJ and confers discretion on national courts to seek a ruling where they consider it necessary • Courts falling within paragraph 234 (3) are only required to seek a ruling (shall) where they also think it is necessary (Cilfit) • ECJ has given guidance to national courts as to when a preliminary ruling will not be necessary but national courts free to decide • However ECJ will, on occasions, refuse to give a ruling in certain circumstances • Proposals for reform