Reference for a preliminary ruling

Art. 267TFEU

Chiara Favilli

Roma 7-8 aprile 2014

Purpose

• Uniform interpretation and application of EU law• Judicial cooperation between national judges

and ECJ– Help to resolve problems of application of EU law

• Competence of the ECJ• Potentially also of TFI but not yet (not

implemented art. 225, par. 3, TFEU

• Overload of cases

National jurisdiction

• Dorsch Consult: legal origin, permament characted, compulsory jurisdiction, inter partes procedure, application of rule of law, indipendence

• Interpreted in a flexible way

• Constitutional Courts included

Compulsory jurisdiction

• Exclusion of voluntary arbitration tribunal

• Critiche

• Eventually appeal against arbitral award in front of a court and in that procedure a reference for a preliminary ruling maybe asked

Subject• Interpretation of the Treaty

• Interpretation and validity of of acts adopted by the institutions, bodies, offices or agencies of the Union– Same means enlisted at art. 263 TFEU– Even not binding acts

• Interpretation of statutes of bodies

• Even of previous judgments

• Even of agreements of Europea Union according to art. 218 TFUE– Es. agreement regarding the participation to the OMC

• National rules taking EU law as a model:– Typical of free movement rules

• E.g. Leur Bloem case

Procedure

• Request

• Hearing of the case – judgment

• Application in national procedure

Shortened procedures

• Art. 104 bis of the Rules of Procedure– Accelerated

• where the circumstances referred to establish that a ruling on the question put to the Court is a matter of exceptional urgency

• Art.104 ter of the Rules of Procedure– Expedited

• Only on Title V TFEU• When the person is in custody

Procedure

• National Request sent:– To all parties national proceedure– To all Member States’ Governments– EU Institutions

• They can intervene

• National procedure to be suspended

Other steps

• Written reply and rejoinder

• Oral hearing

• Decision– Facts at stake – Relevant EU and national Law– Requests asked – Judgment

Request• Upon request

• Ex officio

• ECJ judgment deemed to be relevant and necessary to decide the case

• Judicial Appreciation:– Foglia V. Novello: Hypotetical problem– Laurenco dias: no relationship with the actual

facts– Telemarsicabruzzo: the Court has not been

provided with the factual or legal material necessary to give a useful answer

Obligatory reference• Obligatory reference: case pending before

a court of a Member State against whose decisions there is no judicial remedy in domestic law and the answer is necessary for the court to reach a decision

• Avoiding non coherent application of EU law at supreme courts

• Avoiding overload of ECJ cases

IntepretationCILFIT

• Decision on «necessity» of the preliminary ruling

• Exceptions:– Acte éclairé

• the Court has already ruled on the point – Same provision or same legal point

– Acte claire• the question has not yet been answered in the

case law of the Court of Justice, but the answer to that question is beyond all doubt

• The matter is equally obvious both to the courts of the other Member States and to the Court of Justice

Validity Foto-Frost

• All national courts must submit a request for a preliminary ruling when they have doubts about the validity of such an act

• The contrary if they decide that the act is valid – Uniformity – Coherence with action of annulment– Eventual participation of EU institutions to the

proceeding in front of ECJ

Interim measures• Exception to Foto-Frost principle• Zuckerfabrik, 1991: application of the act may be

suspended– Even national acts grounded on EU measures deemed as illegal

• Serious doubts on validity of EU measure• Provisional character of the suspension• the court immediately asks the Court of Justice to rule on the

act's validity• serious and irreparable damage • In the interest of EU law

Rephrasing

• The request is changed by the ECJ– E.g.: request to assess the conformity of national law with EU

law. The Court will interpret EU law and it is up to the national judge to interpret national law

– Sometimes evaluation of national law is more evident

• The Court wants to make reference also to a point not submitted by the national court

• Rejection of the doubts of legality of the act if interpreted in a particularly way

Effects• Binds the national court that requested the

judgment as well as all bodies, which may have to decide the same case on appeal– Possible a second preliminary ruling in the same case

• Se non si conforma si può avere un giudizio di infrazione– Risposta della Commissione ad un’interrogazione

scritta del PE• Ma separazione dei poteri• Atteggiamento cooperativoSoluzione tedesca: il g. che non coopera sottrae il caso al

giudice naturaleSentenza Koebler del 30.09.2003: risarcimento del danno ad

uno Stato membro anche a causa di una sentenza:applicazione non corretta; non rinvio pregiudiziale; non conformità alla sentenza della CdG

Interpretation • Stare decisis but national judges may

request a second preliminary ruling in the same case

• Binding effect of interpretation– Exception to the rule of the obligatory

reference

• MS should revoke national law whis is not in line with EU law

• According to IT Constitutional Court:– ECJ judgment is jus Superveniens

Validity• The judgment is sufficient reason for the referring

court and for any other national court to consider that act as void

• Should the national court have doubts as to grounds, scope and consequences of the nullity established earlier, then this court is free to raise a question once again

• New reference on same act with new reasons• Judgment DECLARES the act as void so that the

act keeps on to have effects but EU institutions have to enact all the required activities to remove the defects, amending or revoking the act

Interpretation

• Retroactive effects:• Exception: the Court may restrict the

opportunity of relying upon the provision as thus interpreted with a view to calling in question legal relationships established in good faith– Sentenza Blaizot

• Certezza del diritto e sistema finanziario dell’insegnamento belga facendo salvi coloro che avevano presentato il ricorso prima della sentenza

Temporal effects

• Validity

• Retroactive effect

• 264 TFEU applied by analogy to reference for preliminary ruling’s judgments

• Limitation even to the national judge: FRAGD

• Non application of EU law declared as void which shall be revoked by EU institutions

Effects

• Declaration

• No appeal

• No revision or opposition from a third party

• Only possibile a new reference if the judge has doubts on interprtation and application of the judgment

Relations with other measures

• With infringment and failure to act– Infrinment after a preliminary ruling’s decision– Preliminary ruling not used to contest the

failure to act

• Annullment:– Those not able to appeal the act directly may

challenge national law and then ask for a reference for preliminary ruling

– TWD: persons capable to appeal the act directly, cannot ask for a preliminary reference

• Neither ex officio or upon request