Read the summary and the most important questions on WS1 Article 267 Procedure

• 1 STEP 1: is the body a court or tribunal

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• Explain why the Dutch medication professions' organisation was considered a court or tribunal in Broekmeulen and contrast with Nordsee which was not?

  Broekmeulen was denied registration as a GP in the Netherlands and appealed to the Appeals Committee of the Dutch medical profession. The ECJ concluded that it was a 'court or tribunal' as it fulfilled most of the factors inDorsch. In contrast, in Nordsee, the use of a private arbitrator to resolve a contractual dispute between three German firms did not fall within the meaning of a 'court or tribunal' as it lacked state recognition because it was private.

• 3 STEP 3: Courts which must refer and courts which may refer (Mandatory/permissive jurisdiction)

• 3.1 Mandatory jurisdiction

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• How are courts of mandatory jurisdiction described under Article 267 and explain how the case of Costa v ENEL develops this definition.

  'against whose decision there is no judicial remedy under national law' (Article 267(3)). Costa v ENEL confirmed this as the highest court for that case. Here, there was no further right of appeal to any higher Italian court beyond the Italian magistrates' court (which was the court of last resort) due to the small amount of money in dispute.

• Explain the ECJ's added requirement for national courts who refuse to refer and whether national courts must give reasons for not referring by explaining which CILFIT criterion applies.

  The ECJ also added a requirement that national courts must give reasons for not referring, namely they must state which CILFIT criterion applies.

• In a situation where the court fails to refer, can the ECJ challenge the member state and what other remedies can the individual(s) pursue?

  Should the court fail to refer, the ECJ cannot challenge the MS. However, the individual(s) may bring a state liability claim if the state's breach is "sufficiently serious" (Kobler v Austria).

• 3.2 Permissive jurisdiction

• Should courts of permissive jurisdiction refer? What other ways can it settle the point of EU Law? Are they able to do it themselves?

  Permissive jurisdiction courts have the discretion to refer or decide the question of EU law themselves  and the ECJ cannot compel it to make a reference (art. 267(2)).

• 3.2.1.1 ECJ's Information Note

• Explain the ECJ guidelines for when it is useful to make a reference that is contained in the ECJ's Information Note?  

  • The question is of wider interest for the uniform application of EU Law
    
  • Existing case law does not answer to a new set of facts

• 3.2.1.2 ECJ case law

• Can a higher national court prevent a lower national court from making a reference? Explain the facts in Rheinmuhlen-Dusseldorf ?

  A higher national court has no authority to prevent a lower national court from making a reference. In Rheinmuhlen-Dusseldorf, a lower German court was prevented from referring because it had to apply the appellate court's interpretation of EU law even if it was incorrect. The ECJ held that the lower court could refer.

• When a court of permissive jurisdiction decides not to refer, can it declare a piece of EU law invalid?

  A national court cannot declare a piece of EU law invalid Foto-Frost. If a court of permissive jurisdiction is doubtful about the validity of a piece of EU law, then it must refer.

• 3.2.2.1 UK case law

• Compare and contrast the different positions in R v International Stock Exchange, ex p Else Ltd with Trinity Mirror plc v CEC concerning whether a court of permissive jurisdiction should refer?

  In R v International Stock Exchange, ex p Else Ltd Bingham MR stated that national courts should refer in cases where the question of EU law was critical to the outcome of the case unless the court is able to answer the q in complete confidence. This was because the ECJ has more expertise. In contrast, in Trinity Mirror plc v CEC the CoA suggested that the national courts should show 'a greater measure of self-restraint'.

• 4 STEP 4: Are there grounds for the ECJ to refuse the reference?

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• 1. Can the ECJ refuse to accept a reference where the national courts' question involves interpreting national law?

  The ECJ can only interpret the meaning of EU law and not the meaning of national law and whether it conflicts with EU law (Costa v ENEL).