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15 Cards in this Set
- Front
- Back
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Questions that can be referred |
1. Interpretation of treaties. 1(b). Validity and interpretation of acts of institutions, bodies, offices, etc. ICC, Foto-frost. Validity contested before national court. Individual may argue a regulation gives rights enforceable at national courts. Even if it isn't directly effective, references can be made to clarify the interpretation. |
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What kind of body is considered a court/tribunal |
1. Whether it is established by law 2. Whether it is permanent 3. Whether its jurisdiction is compulsory 4. Whether its procedure is inter partes 5. Whether it applies rules of law 6. Whether it is independent. Craig+De Burca, p 466-7. Broekmuelen Court must be connected to the regular court system of the MS. |
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Must a court refer any issue to the ECJ? |
Yes, once it's a court 'against whose decisions there is no judicial remedy under national law'. These are (abstract) only bodies whose decisions are never subject to appeal or (concrete) only bodies whose decision in that type of case are never subject to appeal. Latter favoured in Costa. Lower courts can refer to ECJ and courts of appeal can't set that aside -Cartesio |
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Must a court..? II |
Not if 1) EU court has already ruled on the matter Da Costa en Schaake 2) No doubt as to validity of the measure 3) Decision on the q not necessary for that case This is essentially precedent. CILFIT. Even if it isn't the same type of proceedings, if the point of law is the same they don't need to. Can still refer, but will likely get the same answer. It is multilateral, not bilateral. International Chemical Corporation |
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Exceptions to this obligation |
CILFIT. Things to consider: 1. It's printed in different languages 2. Different legalese 3. Context. Mancini and Keeling saw it as them reconciling their own power slightly to make supreme courts feel more amicable while placing heavy restraints on it. Others felt it was too restrictive(Rasmussen), others felt too liberal. Arnull Clear beyond any bounds of reasonable argument R(Countryside alliance) v AG in the UKSC. |
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Can the ECJ declare a provision of national law invalid in 267 proceedings? |
No, it interprets the Treaty. Consequences can be that a national law is incompatible with EU law, and supremacy takes effect. But that obligation is on national courts then. |
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Can a national court declare a provision of EU law invalid? |
No. Firma Foto-Frost. Article is to ensure that community law is applied uniformly by national courts. Only CoJ has the power to declare invalid any Community Act. |
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CJEU Declining Jurisdiction |
Hypothetical cases Waste of judicial resources, facts may be different once case becomes 'concrete'. But gives legal certainty to peoples' actions. Foglia. Not Relevant to Resolution of Dispute Meilicke. Questions not articulated sufficiently Will not alter substance of questions given. Bacardi-Martini SAS v Newcastle United FC Facts are insufficiently clear. Telemarsicabruzzo |
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Increased Burden |
Increasing workload as judiciary take EU law cases. Time to process a preliminary ruling has decreased. -Duty on CJEU to decide ASAP when person is in custody. -Provision for expedited hearings(Provisional on approval of President) -Given by reasoned order if obvious or falls within precedent -Case can be decided w/o opinion from Advocate General Not enough. New countries joining, numbers of references increasing. General Court coming under strain too. |
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Increased Burden, papers written |
-Court's Paper (written by ECJ and CFI) -Due Report (former ECJ judges) |
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IB: Limiting nationalcourts empowered to make a reference |
Both papers went against this. Ability of any national court being able to reference has allowed EU law to penetrate all levels of national legal system. Only allowing highest courts to do so would not be fair. |
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IB: Filtering based on importance of question |
National courts of final resort only obliged to refer questions of sufficient importance, same with lower courts. Proposed by both papers. Problem 1: They may avoid risking a reference, in case it's rejected. Problem 2: If it's rejected, it places the national court in a very awkward position. |
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IB: National Courts propose an answer to the question |
Already been incorporated in the recommendations to national courts. Problem 1: Doesn't help a huge amount. Problem 2: National courts not experts on EU law. |
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IB: Towards an appelate system |
Due report strongly opposed, court paper considered it. Problems: Burden on national courts, unlikely to solve ECJ's caseload as always an incentive to refer. |
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IB: Decentralised judicial bodies |
Would bring it physically closer to citizens. Due Report didn't like it. Problems: Jeopardise uniformity of EU law |
