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.