EU Law: Exam Summary Notes on 'The Preliminary Procedure'

THE PRELIMINARY RULINGS PROCEDURE

1. INTRODUCTION

·      Article 267 TFEU allows any ‘court or tribunal’ of a Member State to request the ECJ to interpret provisions of EU law (the TEU, the TFEU and secondary legislation in the form of regulations and directives).

·      The ECJ interprets EU law: the national court or tribunal then applies that law, as interpreted.

·      Having one court to interpret all EU law ensures the same meaning is given throughout the Union. Emphasized in Stauder v Ulm: “the necessity for uniform application and accordingly for uniform interpretation”.

·      The ECJ generally follows its own previous rulings, although it is not bound to do so and occasionally does overrule itself (see Keck & Mithouard).

·      The ECJ usually adopts a “purposive” approach to interpretation, seeking to interpret ambiguous EU law in a way which most promotes the purpose behind the legislation (Adidas).

2. ‘ANY COURT OR TRIBUNAL’

·      Only a ‘court or tribunal’ may request a ruling. This phrase has been interpreted very widely (Dorsch Consult). The factors that may be taken into account include whether the body:

o  is established by law,

o  is permanent,

o  has compulsory jurisdiction,

o  has an inter partes procedure,

o  applies rules of law, and

o  is independent.

·      It is certainly not required that a body have the name ‘court’ or ‘tribunal’. For example, in Gebhard a reference request form the Italian National Bar Council was accepted. In Jia a reference request from the Alien Appeals Board in Sweden was accepted and in Wood a reference request from the Compensation Commission for Victims of Crime in France was accepted.

·      Conversely, an arbitrator is not a ‘court’, because of the lack of compulsory jurisdiction (Nordsee, Denuit & Cordenier). For more obvious reasons, a public prosecutor is not a ‘court’ (Criminal Proceedings Against X).

·      There are limits. It is crucial that a body carries out a judicial function. A purely administrative body is not a court because it does not apply rules of law (Victoria Film). Even a court may not be a ‘court’ if it is carrying out a purely administrative function (Job Centre; Salzmann; Lutz).

·      Independence is crucial. If independence is lacking the ECJ will not respond (Schmid). The referring body must have no connection with any other body (Corbiau; Schmid). It must be protected against external pressure or influence (Wilson). The members of the referring body must be impartial (Wilson).

·      In Alpe Adria Energia, A-G Ruiz-Jarabo Colomer complained that the ECJ had become too generous with the interpretation of ‘court or tribunal’, opening up the PR procedure to “quasi-judicial bodies”. He invited the Court to “lay down a stricter and more consistent body of rules” on admissibility. However, the Court declined to do so.

3. DOCKET CONTROL

·      Provided that the question referred to the ECJ is one of interpretation or validity, the ECJ is bound in principle to respond.

·      However, there are some situations when requests have been declared inadmissible:

1.       Irrelevance – the ECJ will reject questions where it is “quite obvious” that the question referred to the ECJ bears no relation to the actual nature of the case or the subject-matter of the case (BP Supergas). The Court will also reject questions that do not actually involve EU legislation at all (Vajnai; Agafiţei & Others).

2.      Hypothetical questions – as in Meilike v Meyer and Foglia v Novello. The ECJ will refuse to answer a question which is not necessary to enable the national court to resolve a genuine dispute.

3.      Lack of factual and/or legal context – it is “necessary that the national court define the factual and legislative context of the questions it is asking” (Telemarsicabruzzo).

4. MANDATORY REFERRAL

·      Under Article 267 (2), any court or tribunal ‘may’ make a request. However, under Article 267 (3), courts or tribunals, against whose decisions there is no ‘judicial remedy’ under national law, ‘shall’ refer. These are the “courts of last resort”. In the UK, the Supreme Court must, therefore, refer cases to the ECJ where a point of EU law is involved (unless one of the exceptions apply – see below). All other courts and tribunals have discretion.

·      Where a court’s decision can be challenged in theory (even if in practice it requires the grant of leave to appeal from the court above it in the hierarchy) then it is not a court of last resort (Lyckeskog). The right to seek leave (even if none is forthcoming) is still a ‘judicial remedy’. It is possible that a court such as the Court of Appeal could exceptionally find itself subject to para (3) if in a particular case but only if there was no possibility of even seeking leave to appeal (Chiron v Murex (1995)).

Exceptions to mandatory referral

Despite the clear obligation under Article 267 (3), the ECJ has identified three situations when a reference is not obligatory, even for “courts of last resort”.

1. Irrelevance

·      In CILFIT, the ECJ held that there is no obligation to refer questions to the ECJ where the question was not relevant to the case. Indeed, if such as question were asked it would be declared inadmissible anyway (see the previous section).

 

2. Previous Rulings

·      In Da Costa, the ECJ decided that there is no obligation to seek a ruling on a question when the same question has already been answered in a previous case.

3. Acte Clair

·      According to CILFIT, “the correct application of [EU] 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.” This is acte clair (literally, clear act).

·      However, acte clair must be used with caution: “Before it comes to the conclusion that the correct application of [EU] law is obvious [the national court or tribunal] must in particular be convinced that the matter is equally obvious to the courts of the other Member States and to the Court of Justice” (Intermodal Transports).

·      The CILFIT criteria apply, including “bearing in mind” potential linguistic differences.

·      Acte clair is controversial because it allows “courts of last resort” to decline to seek a ruling when the answer is obvious to them, creating the possibility of divergence between Member States. The CILFIT criteria are meant to protect against abuse, but have been largely ignored in practice, by both the House of Lords and Supreme Court in the UK.

5. THE URGENT PROCEDURE

·      Introduced in 2008.  Allows exceptional / sensitive cases to be fast-tracked. The first case, Rinau, involving a child custody dispute, was decided within 8 weeks. Santesteban Goicoechea, involving extradition proceedings, was decided within 6 weeks.

·      Excessive speed could be counter-productive. Judges need time to reflect on the questions referred to them, time to assess the various arguments put forward during the case, and time to consider the “wider ramifications” of their conclusions.

·      Not a long-term solution to the problems of delay (see below), as it just allows exceptional / sensitive cases to go to the front of the queue – all other cases just get moved down the queue.

6. THE NEED FOR REFORM AND THE ROLE OF THE GENERAL COURT

·      The ECJ is faced with a backlog of cases, although it is not as bad now as it has been. In 2012, the average waiting time (from a national court requesting a ruling until the ruling itself) was 15.7 months, down from the all-time high of 25½ months (in 2003). That is a significant improvement – but it may only be temporary. The number of requests for rulings has been steadily increasing since 2005, reaching an all-time high of 423 in 2011.

·      If the waiting time goes back up, national judges may be inhibited from asking questions, instead attempting to answer the questions themselves, which threatens the whole point of the preliminary rulings procedure (the need for uniform application of EU law),  individual rights (if the judges get the answer wrong) and the “co-operation” between the ECJ and the national courts.

·      The backlog has been caused by (amongst other things):

The width of the ECJ’s own definition of ‘court or tribunal’.

The expansion of the EU (from 6 to 27 Member States), allowing more courts and tribunals to refer questions.

The associated growth in the number of official EU languages.

The ever-increasing scope and volume of EU secondary legislation.

Conferral of Jurisdiction on the General Court

• In the future, some preliminary rulings may be transferred to the General Court under Article 256(3) TFEU, in ‘specific areas’ of EU law.
• Although this reform was agreed in 2000, no ‘specific areas’ have yet been decided.
• There will be the possibility of further reference to / review by the ECJ.
• Potential problems: (1) The General Court ‘may’ refer cases onto the ECJ when a ‘decision of principle’ is involved – what does this mean? (2) The ECJ may review General Court rulings, which undermines the authority of those rulings.

7. REFORM OF THE PRELIMINARY RULINGS PROCEDURE

Other reform proposals include:

v  Appointing more judges;

v  Restricting the range of national courts with the discretion to seek rulings;

v  Allowing the ECJ to filter questions;

v  Setting up regional courts with EU legal specialism (decentralisation).

All of these proposals would reduce the workload of the ECJ and hence reduce the time-delay… but at what cost?

v  Appointing more judges may lead to inconsistencies between the ECJ’s chambers, threatening uniformity by undermining the whole point of the preliminary rulings procedure. It may also lead to a decline in the quality of judgments.

v  Restricting national courts’ ability to seek rulings threatens uniformity as those courts will have to decide questions of EU law themselves with no assistance from the ECJ. May lead to more appeals in national courts as litigants try to get a case into a national court which has retained the power to request rulings.

v  Case Filtering may undermine the “co-operation” that exists between the ECJ and national courts and tribunals. May deter national courts from seeking rulings, leading to inconsistency of interpretation in different Member States.

v  Decentralisation threatens uniformity. Setting up several new courts will incur considerable cost in terms of infrastructure, staffing, communications and IT. 

EU Law: Exam Summary Notes on 'The Limitation on The Free Movement of Persons'

LIMITATIONS ON THE FREE MOVEMENT OF PERSONS

·         Articles 21 TFEU states that the right of free movement is “subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect”.

·         Further guidance is given in Directive 2004/38, which repealed Directive 64/221.

1. GENERAL PRINCIPLES

·         Directive 2004/38 only applies to restrictions placed on the movement of ‘Union citizens and their family members’. See Nouazli (Court of Appeal) for an example of public policy measures taken against a Citizen’s family member.

·         It does not apply to measures taken against non-EU nationals (who are unrelated to a Union Citizen) – Dem'Yanenko, involving a Ukrainian national.

‘Measures’

·         Member States are allowed to impose ‘measures’ which restrict free movement. These include:

o   refusal of entry (Van Duyn);

o   refusal of exit (Jipa; Gaydarov; Aladzhov; Byankov; Gough & Others);

o   deportation / expulsion (R v Bouchereau; Bonsignore; Calfa; Tsakouridis);

o   refusal to issue a residence permit (Adoui & Cornuaille, Jany & Others);

o   internal restrictions (Rutili; Otieza Olazabal).

·         The fact that Member States cannot refuse entry to, or expel from, national territory their own nationals does not prevent them from refusing entry to, or expelling from, national territory other States’ nationals (Pereira Roque).

·         One situation in which States can take action against their own nationals is a refusal of exit.

‘Proportionality’

·      Public policy or security measures must comply with the principle of ‘proportionality’ (Article 27(2)).

·      Deportation because of failure to comply with immigration formalities would be disproportionate (Oulane).

·      An absolute and indefinite prohibition on a Citizen leaving his or her home State would be disproportionate (Byankov).

·      In cases where deportation is contemplated following a criminal conviction, account must be taken of the:

o   nature and seriousness of the offence committed;

o   duration of residence in the host State;

o   period which has passed since the offence was committed;

o   conduct of the person concerned during that period;

o   ‘solidity of the social, cultural and family ties with the host State’ (Tsakouridis).

‘Personal Conduct’

·      Public policy or security measures must be based ‘exclusively’ on the ‘personal conduct’ of the individual concerned’ (Article 27(2)). This means that:

o   Member States may not take measures based on “general considerations” (Rutili).

o   Member States cannot take measures against an individual on the ground that it will serve as an example to others (Bonsignore).

o   Automatic deportation following conviction of a criminal offence is not permissible. Member States must take account of the individual’s ‘personal conduct’ which led to the conviction (Calfa; Orfanopoulos & Oliveri).

o   Present membership of an ‘objectionable’ organisation may constitute ‘personal conduct’ (Van Duyn, Kraus).

‘Previous Criminal Convictions’

·      Previous criminal convictions must not ‘in themselves’ constitute grounds for the taking of measures (Article 27(2)).

·      They may only be taken into account “in so far as the circumstances which gave rise to that conviction are evidence of personal conduct constituting a present threat” (R v Bouchereau).

·      This is possible in 2 situations:

·      Where there is a “propensity to act in the same way in the future”;

·      On the basis of “past conduct alone”.

·      One example of the latter is Marchon (convicted of trafficking 4.5kg of heroin worth £450,000 and sentenced to 11 years’ imprisonment). Contrast with Monteil and Proll. Although both had previous convictions there was no evidence that either was a “present” threat owing to significant changes in their circumstances.

2. PUBLIC POLICY, SECURITY AND HEALTH

‘Public policy’

·      ‘Public policy’ presupposes a “genuine and serious threat” to the “fundamental interests” of society (Article 27(2); R v Bouchereau).

·      It is usually, but not necessarily, concerned with criminal activities (Van Duyn).

·      The Member State must impose “repressive” measures, such as criminal penalties, on its own nationals before it can invoke ‘public policy’ measures against nationals of another Member State (Adoui & Cornuaille, Jany & Others).

‘Public security’

·         ‘Public security’ has been invoked in three cases:

o   Otieza Olazabal, involving a member of ETA,[1] an “armed and organised group”.

o   Tsakouridis, involving drug trafficking. This “poses a threat to health, safety and the quality of life of citizens of the Union, and to the legal economy, stability and security of the Member States”.

o   P.I., involving the sexual exploitation of children. This constitutes a “particularly serious threat to one of the fundamental interests of society, which might pose a direct threat to the calm and physical security of the population”.

‘Public health’

·      ‘Public health’ measures may be taken ‘against those suffering from ‘diseases with epidemic potential’ and ‘other infectious diseases or contagious parasitic diseases’ (Article 29).

3. PROCEDURAL SAFEGUARDS

Protection against expulsion

·      Article 28(1) lists various factors which Member States must take into account before taking an expulsion decision:

o   how long the person has resided on its territory;

o   his/her age;

o   his/her state of health;

o   his/her family and economic situation;

o   his/her social and cultural integration into the host Member State;

o   the extent of his/her links with the country of origin.

·      The most important of these is family status, if any (Rutili; Orfanopoulos & Oliveri). Respect for family life is protected by the ECHR and the EU’s Charter of Fundamental Rights.

·      Article 28(2): Those with a right of permanent residence (acquired after 5 years’ continuous legal residence), may only be expelled on ‘serious grounds’ of public policy or security.

o   ‘Serious grounds’ refers to those convicted of crimes of violence (B, Court of Appeal).

·      Article 28(3): Those who have resided in the host State for the ‘previous 10 years’ can only be expelled on ‘imperative grounds’ of public security.

o   ‘Imperative grounds’ presupposes “a particularly high degree of seriousness” (Tsakouridis).

o   Time spent in prison does not count towards ‘residence’ (M.G.).

o   The ‘10 years’ is determined by “counting back” from the date of the expulsion decision (M.G.).

o   The ‘10 years’ should, in principle, be “continuous” (M.G.). In determining whether the 10 year period has been interrupted by absences, the host State should take “all the relevant factors into consideration in each individual case”, including:

§  the duration of each period of absence,

§  the cumulative duration and the frequency of those absences,

§  the reason(s) why the person concerned left the host State.

o   Ultimately, it must be “ascertained whether those absences involve the transfer to another State of the centre of the personal, family or occupational interests of the person concerned” (Tsakouridis).

·      Article 33(1): Deportation must not be an ‘automatic consequence’ of a criminal conviction.

·      Article 33(2): Expulsion orders should not be enforced more than 2 years after being issued without a ‘check’ to establish whether the person is ‘currently and genuinely’ a threat.

Notification

·      Article 30: A person subject to measures must be notified ‘in writing’ and ‘in such a way that they are able to comprehend its content and the implications for them’. The State must give the individual a “precise and comprehensive statement of the grounds for the decision, to enable him to take effective steps to prepare his defence” (Rutili).

·      This is the case unless notification would be ‘contrary to the interests of State security’ (Article 30(2)). The leading case is Z.Z. (2013). According to the ECJ:

o   Article 30(2) must be interpreted “strictly”.

o   An “appropriate balance” must be struck “between the requirements flowing from State security and the requirements of the right to effective judicial protection”.

§  On one hand, full disclosure of evidence may compromise State security in certain cases in “a direct and specific manner” e.g. by revealing the identity of undercover agents.

§  On the other hand, the “fundamental right to an effective legal remedy” implies that litigants should be able to examine, and to comment on, all the documents or observations submitted to the court.

o   Therefore, the person concerned must be “informed of the essence of the grounds” which constitute the basis of the expulsion decision” “in a manner which takes due account of the necessary confidentiality of the evidence”.

Appeals and Reviews

·      Article 31: Appeals and/or Judicial review procedures must be made available. “All steps must be taken to ensure that the safeguard of the right of appeal is in fact available” (Royer).

·      The review body must “perform its duties in absolute independence” and not “be directly or indirectly subject in the exercise of its duties to any control by the authority empowered to take the measures provided for in the directive” (i.e. the government) (Gallagher).

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[1] Euskadi Ta Askatasuna (Basque Homeland and Freedom).