Essay: Cases referred to the ECJ

“Article 267 has been the mechanism through which national courts and the CJEU have engaged in discourse on the appropriate reach of EU law when it conflicts with national legal norms” 1
Indeed Article 267 TFEU [hereafter Art.267] is of a seminal importance for the function of EU law. It brings forth the tandem relationship between the European Court of Justice [ECJ] and each national court in the Member States in determining uniform interpretation and application of EU law and “conformity with Union law”2 Its function is not limited there, but extends further into the development of EU law, most notably the terms of direct effect and supremacy. It has been referred to as “the ‘jewel in the Crown” of the Court’s jurisdiction” 3 Article 267 allows national courts the opportunity to refer a case in question to the ECJ in order to receive a preliminary ruling on the validity and interpretation of EU law4. In order for the correct functioning of Article 267, the ECJ must use strict discretion when determining whether to accept or to decline a certain case. Equally, Article 267 sets out certain terms and conditions under which national courts have discretion to refer cases and others who are obliged to refer. However, in recent years, the lines between when cases can be referred and when they have to be referred have become blurred due to a lack of clarity of the terms set out by Article 267. This has resulted in an excess amount of case work being sent to the ECJ. Hence, Ward’s statement of the importance of both the national courts knowing how and when to refer and the ECJ knowing when to accept and decline is the focal point in the correct functioning of the preliminary reference system. I shall begin this essay by discussing the process of how a national court refers a case to the ECJ. I will then analyze the discretionary process of referring cases to the ECJ and the referential discretion held by the ECJ. To conclude, I will offer up both my personal opinion and external ideas on how this process could be reformed in order to reduce the amount of excessive case work to the ECJ. I will be referring to existing case law and lecture notes throughout the essay, while also presenting my own personal opinion on this topic based on my further research into existing case studies and reading.
Under Article 267, questions that a national court or tribunal can decide to refer to the ECJ for a preliminary ruling must require a decision of the ECJ ‘necessary to enable it to give judgement’5 It is the decision of the national court itself to decide whether a preliminary ruling is necessary or not to give its judgement on a dispute.6 A national court may, if it decides to, refer multiple cases at the same time if the court finds difficulties in either applying the judgement of the ECJ or the application of such judgement. This was determined by the judgement in Pretore di Salò v Persons Unknown7 The question of how to refer a case to the ECJ for a preliminary ruling is of a much less complicated matter. The Court has actually set out a document of recommendations8 to which the national courts must adhere to when making a reference. Under EU law, the national courts have the discretion to decide at what stage of proceedings it wants to make a preliminary reference, however according to the ECJ’s recommendations9 “it is, however, desirable that a decision to make a reference for a preliminary ruling should be taken when the national proceedings have reached a stage at which the referring court or tribunal is able to define the legal and factual context of the case”. Furthermore, the reference must contain the questions being referred, a summary of the case in question, any relevant provisions of national law and national case law, relationship with EU law and the national court must explain why it decided to refer the case. The national court must adhere to such principles as they face the threat of rejection if they don’t. This occurred in Telemariscabruzzo10 where the facts of the case were insufficiently offered to the ECJ and therefore the case was dismissed.
Now I shall discuss the more tasking matter of the discretion of both the ECJ and the national courts. Indeed, in recent years the ECJ has seen an upsurge in the amount of cases referred.11 This may be influenced by the increase in the number of Member States of the EU and the accelerated procedure, however it is most certainly a result of the lack of discretion being used by both the national courts and the ECJ. Ireland has one of the lowest reference rating and according to Elaine Fahey12 Irish courts make “only half, or in some cases, a third of the number of references made by other national courts” A national court refers a case to the ECJ for preliminary ruling based on its decision as to whether there is an established need and suitable grounds for a reference based on facts of the case at hand and the national law concerned, and to apply the ruling of the Court to the case upon delivering judgement.13 The ECJ gives an interpretation of EU law based on the facts of the case or decides the validity of EU law. It is up to the ECJ to decide whether a national body is a “court or tribunal”14. There are certain factors that the ECJ must take into account when making the decision such are; whether the body is established by law, whether its permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law, and whether is it independent15
Under Article 267 (2) and (3), there are certain terms and conditions which form the basis as to which courts are given the discretion to refer and which are obliged to refer. It is for the CJEU to decide whether a body is a court or tribunal for these purposes, and the national categorization is not conclusive. 16 As highlighted in the judgement of Lyckeskog17 , if the decision of a national court can be “challenged by the parties before a supreme court”, then these courts are not under obligation to refer the question as these decisions are not of a “court or tribunal of a Member State against whose decisions there is no judicial remedy under national law”18 It can prove to be quite tasking for national courts who have discretion to determine whether or not a reference is required to a certain case. A basis on whether to refer a question is highlighted by Gaffney, “[i]t is implicit that authority conferred under Article 234 [now Art. 267] on a national court to refer a question to the Court of Justice is contingent upon the [national] court being of the opinion that a decision on the question is necessary to enable it to give judgement.” 19 However, if a situation occurs where the deciding national court finds that an EU measure is invalid, it must refer the case to the ECJ. This occurred in the Fotofrost20 case. The national court referred a question to the ECJ as to whether it could declare an EU measure invalid. However, the ECJ declared that a national court does
not hold such power as such “divergences between the 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 of legal order and detract from the fundamental requirement of legal certainty.”21 Therefore, the ECJ holds that if a question on the validity of EU law occurs, the national court must refer the case. The main purpose of this obligation of the national court is to “ensure that Community law is applied uniformly by national courts. That requirement of uniformity is particularly imperative when the validity of a Community Act is in question.” 22 Therefore, Article 267(2) is open to a large number of situations where a national court has discretion to refer a case, however there still exists some limitations to where a national court must refer a case, as previously shown. I shall now talk about where a national court is obliged to refer a case.
Under Article 267 (3) courts and tribunals ‘against whose decisions there is no judicial remedy under national law’23 are obliged to refer cases. This section of the Article also prevents a body of national case law which isn’t set out by the rules of Community law from coming into existence in any Member State 24 However there exists exceptions to this rule of obligation which courts must be aware of to prevent unnecessary references occurring. The first exception occurs when the facts of a case are materially identical to those of another and upon which there has already been a judicial decision. This occurred when the facts of Da Costa25 were materially identical to those in Van Gend en Loos26. While the Court acknowledged the obligation placed on the courts “of last instance”27 by Article 267(3), it advised that “the authority of an interpretation under Article 177 [Article. 267 TFEU] already given by the Court may deprive the obligation of its purpose and thus empty it of substance”28 Therefore the ECJ holds that if the facts of a case are materially identical to those of another case to which there has already been a judicial remedy by preliminary ruling, then the national court of last instance is not under any obligation to refer the case. This was again highlighted in the CILFIT29 case. The judge in this case held that national courts against whose decision there is no judicial remedy are not obliged to make a reference if the ECJ has already dealt with the point of law in question in a previous preliminary ruling, regardless of the nature
proceedings which led to those decisions in which the point of law was dealt with, even if the facts of the questions are not identical.30. This reduces the need for the referring of cases and therefore limits the number of unnecessary references to the ECJ. In order to further reduce the number of unnecessary obligatory references by Article 267(3), another doctrine was introduced. The ‘Acte Clair’ doctrine was a term established through the case of CILFIT 31 Under this doctrine, a national court dealing with a case who “may feel that the answer to the issue is so clear that no reference to the CJEU is required”32 is not obliged to refer the case. According to paragraph 16 of the judgement in CILFIT33, when the correct application of Community law is so obvious that there is no room for reasonable doubt as to the manner in which the question is to be resolved, the national court of last instance is not obliged to refer the case.
This is where confusion exists as when acting upon this acte clair doctrine, the national courts must ensure that the interpretation of a provision of Community law must be drafted and have the same meaning in all 28 languages34, that Community law terminology prevails35 and that every provision of Community law must be placed in its context and interpreted in the light of the provisions of community law as a whole36. So therefore, if a question of European Union law is raised before a court or tribunal of last instance, to which there is no judicial remedy under national law, must refer the question to the ECJ “unless it has established that the question raised is irrelevant or that the provision of European Union law in question has already been interpreted by the Court or that the correct application of European Union law is so obvious as to leave no scope for any reasonable doubt”37 However, there are further limitations which prevent the national court from releasing itself from the obligation to refer. It is important for these courts and tribunals to familiarize themselves with such conditions as to limit the number of unnecessary references but also to understand the regulations to which they much comply with in order to relieve themselves from obligation .
I shall now begin to discuss the discretionary process of the ECJ. Under Article 267, the Court of Justice must give a ruling whenever a question referred by a national court or tribunal concerns the interpretation of the Treaties or the validity or the interpretation of EU acts on institutions, bodies, offices or agencies or the Union38 However, in order for the correct functioning of this Article, the ECJ must use discretion
when accepting/rejecting referred cases. If the ECJ finds that there is no genuine dispute between the two parties of the case in question, then it can reject to give preliminary ruling. This occurred in Foglia39 case where the parties had formulated the dispute in order to get a ruling in national French taxation law. The Court held that the “duty of the Court of Justice under Article 177 of the EEC Treaty is to supply all courts in the Community with the information on the interpretation of Community law which is necessary to enable them to settle genuine disputes which are brought before them.” 40 Another way that the ECJ can reject a case is based on the fact that the case is hypothetical, as seen in the Gasparini41 case, where the ECJ’s resources would have been wasted when giving a preliminary ruling as the facts of the case were hypothetical. Also if the questions raised to the Court are not relevant to the resolution of the dispute. This was seen in Corsica Ferries42 case where the Court refused to give a preliminary reference on the questions referred as it held that its jurisdiction had no relevance to the facts of the main action. Further, the questions and facts must be articulated clearly or else the Court can refuse to give a preliminary ruling.
The importance of the preliminary ruling procedure has been described as “the veritable cornerstone of the operation of the internal market, since it plays a fundamental role in ensuring that the law established by the Treaties retains its Community character with a view to guaranteeing that the law has the same effect in all circumstances in all Member States of the European Union”43 Therefore, in my opinion, this lack of clarity between the national courts must be addressed sooner rather than later to prevent the ECJ becoming completely overburdened with trivial cases, while important cases are merely glanced upon. According to David Edward44, there are two main problems with the increase in workload to the ECJ. The first problem is that the increase of referred cases to the ECJ is disproportionate to the number of cases being decided upon, and therefore the system could become overflooded and potentially break down. Secondly, the character of the cases referred has changed which slows down the process as the ECJ first has to understand the problem involved the cases before giving its judgement. As the ECJ has seen a sudden surge in the amount of referred cases, as stated earlier, there is obviously a lack of clarity about
the terms of Article 267. For example there seems to be confusion regarding the application of the criteria by the ECJ when determining whether a body is a court or tribunal. 45 Again there’s the issue of whether an arbitral court or tribunal fits into the criteria. 46 In my opinion, the establishment of the doctrine of acte clair further complicates the reference system in that the national courts are confused as to when they are under obligation to refer a case or not. In recent years, it appears that the ECJ has attempted to limit the number of references being sent by national courts. This can be seen in the case of Kenny Roland Lyckeskog47 where the court held that a national court whose decisions can be “challenged” before a national supreme court only if the latter declares the appeal to be admissible, is not a court against whose decision there is no judicial remedy. The ECJ in this case is attempting to limit the obligation to refer.48 Of course, there has been the implementation of the accelerated procedure and the urgent preliminary ruling procedure of the ECJ, however it is apparent that more reforms are necessary in order to reduce the workload of the ECJ.
However, this process of reform may be more tasking than one might think at first glance. According to David Edward49 “Most of the problems are already self-evident. So, taken individually, arc many of the possible solutions. But the solutions proposed are often mutually incompatible. or, while improving matters in one direction, would only make things worse in another. Many of them proceed from a purely national viewpoint, taking little or no account of the attitudes and traditions of other member states. Most of them could not be implemented without the unanimous consent of the Member States – a scarce commodity.” Indeed there have been attempts by the ECJ to limit the number of cases referred and to speed up the system as a whole, but these have proved almost insufficient in improving the efficiency of the system. The true problem may lie in the lack of knowledge of how Article 267 works. As Ward states in the title of this essay, “much depends both on the Court of Justice knowing when to accept and when to decline references and on national courts knowing how and when to refer”. In my personal opinion, the reference system is an urgent need of reform for clarification on both sides. In order for the system to work more effectively, reforms must be made in order to further clarify the terms of the Article 267 and the surrounding established doctrines so that the ECJ and the national courts could fulfil their roles more.