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(p. 47) 3. Preliminary rulings: Article 267 TFEU 

(p. 47) 3. Preliminary rulings: Article 267 TFEU
Chapter:
(p. 47) 3. Preliminary rulings: Article 267 TFEU
Author(s):

Matthew J. Homewood

DOI:
10.1093/he/9780198854999.003.0003
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date: 01 March 2021

The examination

Expect essay or problem questions in this area. Favourite essay topics include the purpose of Article 267 TFEU and the separation of functions between national courts and the Court of Justice; the coherence and effectiveness of the scheme of discretionary and mandatory references within the EU legal order; abuse of the procedure; and the Court’s refusal of references. Problem scenarios typically focus on disputes progressing through national courts and the application of Article 267 at the various levels of the national system.

(p. 49) Key facts

Article 267 TFEU gives the Court of Justice jurisdiction to deliver preliminary rulings on the validity and interpretation of EU law.

  • The primary purpose of Article 267 is to ensure that EU law has the same meaning and effect in all the Member States.

  • Where it considers a decision on a question of EU law is necessary to enable it to give judgment, any court may refer that question to the Court of Justice (the discretion to refer).

  • Where a question of EU law is raised before a national court of last resort, that court must refer it to the Court of Justice (the obligation to refer).

  • However, in CILFIT the Court of Justice set out circumstances in which a national court of last resort is not obliged to refer.

  • On occasions, the Court of Justice has declined to accept a reference, on the grounds that the question referred was irrelevant or hypothetical or that there was no genuine dispute between the parties.

(p. 50) Article 267 TFEU

Article 267 provides:

The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:

  1. (a) the interpretation of the Treaties;

  2. (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union.

Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.

Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.

If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union will act with the minimum of delay.

Outline of the procedure and timing of the reference

When a national court is discharging its duty to apply EU law, it may be uncertain as to its meaning. Sometimes, questions concerning the validity of EU secondary legislation may be raised in national proceedings. In such situations a national court may, and in certain circumstances must, refer the matter to the Court of Justice. The preliminary reference comprises a question or questions about EU law, together with an indication of the factual and legal context of the case. The Court delivers its judgment on the correct interpretation or on validity and refers this back to the national court, which must decide the case before it on the basis of the Court’s response. It is important to note that the parties to an action have no right to a reference. Article 267 does not set out an appeals procedure. Rather, it provides a mechanism enabling national courts to obtain authoritative rulings on the interpretation or validity of EU law.

The Court of Justice has recognized that it is for the national court to determine the timing of the reference. Nevertheless, the Court has emphasized that it can provide a useful response only if the facts and relevant legal issues have been established (Irish Creamery Milk Suppliers Association v Ireland (Cases 36 & 71/80)). Indeed, as will be noted later, the Court has sometimes refused to accept references when it has been provided with insufficient information.

Looking for extra marks?

Whilst the core rationale for the preliminary rulings procedure is the uniform and consistent interpretation of EU law, Article 267 has even broader significance. The role it has played in the development of EU law is hugely important. Article 267 embodies the mechanism through which the Court of Justice has developed major legal principles such as direct effect and indirect effect. For instance, it was on an Article 267 reference from the Dutch court that the Court established the principle of direct effect, in Van Gend (Case 26/62). Many of the cases referred to in this book began in national courts and were decided in the context of preliminary rulings. Currently, around half the cases heard by the Court of Justice reach it by this means. Although it does not provide an appeal procedure, Article 267 is also important for individuals. Through the national court, it provides them with a means of access to the Court of Justice.

(p. 51) Binding effect of preliminary rulings

For some time, uncertainty persisted as to whether preliminary rulings bind only the parties to the dispute giving rise to the reference, or whether they should be applied in subsequent cases. International Chemical Corporation v Amministrazione Finanze (Case 66/80) established that all national courts and tribunals are bound by rulings on validity. Further, in Kühne & Heitz v Productschap voor Pluimvee en Eieren (Case C-453/00), concerning the decision of a Dutch administrative body, the Court of Justice confirmed that its rulings on interpretation bind all national courts and administrative authorities across the EU.

However, the binding effect of a preliminary ruling does not preclude national courts from seeking further guidance from the Court of Justice on interpretation or validity. The Court retains the right to depart from its previous rulings and may do so, for instance when a different conclusion is warranted by different facts.

The Court’s jurisdiction under Article 267

The Court of Justice has jurisdiction to rule on the interpretation or validity of EU law (save in certain areas expressly excluded by the Treaties, such as the Common Foreign and Security Policy). It has no jurisdiction to rule on the application of EU law, on the interpretation of national law, or on the compatibility of national law with EU law. Where such questions are raised, the Court is likely to reformulate them in terms that raise general points of EU law. Nonetheless, in practice the distinction between interpretation and application may not be easily drawn. Indeed, the Court does sometimes express an opinion as to the application of its ruling.

R v HM Treasury, ex parte British Telecommunications (Case C-392/93) [1996] ECR I-1631

Facts: The UK had implemented Directive 90/531, but incorrectly. BT, which claimed it had suffered loss as a result, sought damages from the UK government.

Held: Liability to damages would arise in a case of incorrect implementation of a directive, provided the three Factortame III conditions were met: the directive was intended to confer rights on individuals, the breach was sufficiently serious, and there was a direct causal link between the breach and the loss. Apparently assuming that the first and third conditions were met, the Court went on to declare that the Directive was unclear. It was capable of more than one reasonable interpretation and the Commission had never challenged the UK’s interpretation. Consequently, the UK’s error was excusable and the breach was not sufficiently serious.

(p. 52) Such ‘interference’ by the Court of Justice in the application of EU law may cause difficulties. In Reed, the English High Court considered that the Court had exceeded its jurisdiction in this respect.

Arsenal Football Club v Reed (Case C-206/01) [2002] ECR I-10273

Facts: Arsenal had tried to prevent Reed from selling football souvenirs carrying the Arsenal name and logos. The reference to the Court of Justice concerned the interpretation of the Trade Mark Directive (89/104).

Held: The Court found that there was an infringement of the Directive and, rather than expressing its judgment in general terms, referred directly to the parties and the particular circumstances of the case.

The High Court took the view that the Court of Justice had made findings of fact that conflicted with the facts which it had itself already established. Accordingly, it refused to accept the Court’s conclusion that there was an infringement by Reed and gave judgment for him, declaring that it had no power to cede to the Court of Justice a jurisdiction it did not have. Subsequently, the Court of Appeal overruled the High Court’s decision, holding that the difference between the conclusions of the Court of Justice and the trial judge arose not from any inconsistency in findings of fact, but rather from a variance in legal reasoning.

Revision tip

Think about the rationale for Article 267 and the separation of functions between the Court of Justice and national courts.

‘Court or tribunal’

Article 267 refers to a ‘court or tribunal of a Member State’. The meaning of these terms is a matter of EU law (Politi v Italy (Case 43/71)). Broeckmeulen provided some indication of the scope of ‘court or tribunal’.

Broeckmeulen v Huisarts Registratie Commissie (Case 246/80) [1981] ECR 2311

Facts: Broeckmeulen was refused registration as a medical general practitioner in the Netherlands, despite holding a Belgian medical qualification. He sought to rely on [EU] rules on the free movement of professionals before the Appeals Committee of the Dutch medical professional body. On a preliminary reference from that committee, the first question for the Court of Justice was whether the committee was a ‘court or tribunal’.

Held: In the absence of a right of appeal to the ordinary courts, the Appeals Committee was a ‘court or tribunal’ since it operated with the consent and cooperation of the public authorities and delivered final decisions following an adversarial procedure.

(p. 53) Dorsch Consult Ingenieurgesellschaft v Bundesbaugesellschaft Berlin (Case C-54/96) provided further guidance on the scope of ‘court or tribunal’. Various factors are taken into account, such as whether the body is established by law and is permanent, whether its procedure is inter partes, whether it applies rules of law and is independent, and whether its jurisdiction is compulsory. Over the years, the Court has accepted references from a wide range of bodies, including administrative tribunals, professional disciplinary bodies, tax adjudicators, and insurance officers.

Refusal to accept references

Pursuant to the primary purpose of Article 267, to ensure that EU law has the same meaning and effect in all Member States, the Court of Justice has generally encouraged national courts to refer. Initially, the Court adopted an open approach, taking the view that it was for the national court alone to assess whether a decision on a question of EU law was necessary to enable it to give judgment. The Court later moved on from this position, indicating that its receptiveness to references is not without limits and that it will exert control over admissibility. From time to time, the Court has declined to accept references, most notably where they amounted to an abuse or misuse of the procedure. It has refused jurisdiction where there is no genuine dispute between the parties, where the questions referred are irrelevant or hypothetical, and where the national court has failed to provide sufficient legal or factual information.

No genuine dispute

Foglia v Novello (No 1) (Case 104/79) [1980] ECR 745 and Foglia v Novello (No 2) (Case 244/80) [1981] ECR 3045

Facts: Foglia had agreed to sell Italian liqueur wine to Novello in France. Under the contract Novello would reimburse any taxes incurred by Foglia, unless they infringed [EU] law. Foglia’s separate contract with Danzas, the carrier, stipulated that Foglia would not be liable for any charges that violated [EU] law. French taxes were levied and paid by Foglia, who sought to recover the relevant amount from Novello in the Italian court, claiming that the French taxes breached [EU] law. A reference was made to the Court of Justice.

Held: The Court did not have jurisdiction. There was no genuine dispute and the parties had engineered the situation to challenge the French tax in the Italian court (Foglia (No 1)).

Dissatisfied with this outcome, the Italian court made a further reference. The Court again refused jurisdiction, stating that it did not deliver advisory opinions on general or hypothetical questions (Foglia (No 2)).

Looking for extra marks?

In referring for the second time, the Italian judge was clearly perturbed that the Court’s initial response departed from its previously open approach to receiving references. Foglia (No 2) confirmed that the Court intended to assert control over the admissibility of references. It declared that, whilst having regard to the national court’s assessment of the need for a reference, it would check its jurisdiction by making its own assessment.

(p. 54) It was suggested that the Court’s refusal of the Foglia reference was motivated partly by its recognition of national sensitivities about challenges to domestic legislation in the courts of other Member States. Later cases indicate that the Court will be prepared to accept references in such circumstances (see, for instance, Eau de Cologne v Provide (Case C-130/88)). However, the Court has reiterated its statement in Foglia that it will apply ‘special vigilance’ to ensure that the information provided by the national court establishes the need for a reference. That need was not established, for instance, in Bacardi-Martini SAS v Newcastle United Football Club (Case C-318/00). Here, the Court declined to accept a reference from the English High Court concerning French legislation on alcohol advertising and [EU] rules on the free movement of services.

Hypothetical or irrelevant questions

Despite the Court’s declared intentions in Foglia (No 2), it was some years before it adopted a similar stance again. One notable case in which it did so is Meilicke.

Meilicke v ADV/ORGA AG (Case C-83/91) [1992] ECR I-4871

Facts: A German academic, who had propounded views about the Second Banking Directive, challenged the theory of non-cash contributions of capital developed by the German courts, claiming that it was incompatible with the Directive. There was no evidence that the issue of non-cash contributions was relevant to the case.

Held: Citing Foglia (No 2), the Court had no jurisdiction to give advisory opinions on hypothetical questions and therefore declined to give a ruling.

(p. 55) Insufficient legal or factual information

A number of cases decided since Foglia demonstrate that the Court of Justice will be prepared to respond to a reference only if the facts and the legal issues are made clear in the order for reference. For example, in Telemarsicabruzzo SpA v Circostel (Cases C-320–322/90), the Court refused jurisdiction because the national court had supplied insufficient information on the facts and the relevant national provisions, whilst in Criminal Proceedings against Grau Gromis and Others (Case C-167/94), the Court noted that such information was necessary in order to be able to provide an interpretation that would be helpful for the national court.

Revision tip

Be familiar with the cases demonstrating the limits to the Court’s receptiveness to references from national courts.

Jurisdiction of the national courts to refer

Article 267 draws a distinction between the obligation to refer (Article 267(3)) and the discretion to refer (Article 267(2)).

Obligation to refer

Article 267(3) provides that where a question of interpretation or validity is raised before a court or tribunal of a Member State ‘against whose decisions there is no judicial remedy under national law’ that court or tribunal ‘shall bring the matter before the Court’.

Courts ‘against whose decisions there is no judicial remedy under national law’

Put simply, these are courts of last resort or final appeal. Article 267(3) clearly applies, for instance, to the English Supreme Court. However, the precise scope of ‘courts … against whose decision there is no judicial remedy under national law’ is a matter of debate. There are two different views as to the kinds of bodies that Article 267(3) covers. According to the ‘concrete theory’, the obligation to refer applies to courts whose decisions are not subject to appeal in the particular case in which the question of EU law arises. The ‘abstract theory’ embodies the notion that ‘courts … against whose decisions there is no judicial remedy under national law’ comprise exclusively those courts which occupy the highest position in the national system and whose decisions are therefore never subject to appeal. Costa suggested that the Court of Justice inclines to the former view, the ‘concrete theory’.

Costa v ENEL (Case 6/64) [1964] ECR 585

Facts: The case before the Italian magistrates’ court concerned a claim for such a small sum of money that there was no right of appeal to a higher national court.

Held: The Court of Justice declared that ‘national courts against whose decisions, as in the present case, there is no judicial remedy, must refer the matter to the Court of Justice’.

(p. 56) Particular problems have arisen in the UK concerning the position of the Court of Appeal, since an appeal from that court can only be brought with leave of the Court of Appeal or the Supreme Court. If leave is refused, does the Court of Appeal become a court ‘against whose decisions there is no judicial remedy under national law’? This question was raised in the English court in Chiron Corporation.

Chiron Corporation v Murex Diagnostics [1995] All ER (EC) 88

Held: The Court of Appeal considered that it was not a court of last resort where it had refused leave to appeal. It took the view that the possibility of an application to the House of Lords (now the Supreme Court) for leave to appeal constituted a ‘judicial remedy’. Before refusing leave to appeal, the House of Lords should consider whether the case raised an issue of [EU] law. If it did, that court could either refer the question immediately or grant leave to appeal, with a view to referring the question in the course of the appeal proceedings.

Although the Court of Appeal concluded that it was not a court of last resort, it reasoned that if it transpired that a ruling on [EU] law was necessary, and provided the House of Lords adopted one of the proposed alternative courses of action, a reference would ultimately be made. Subsequently, Lyckeskog endorsed this approach.

Lyckeskog (Case C-99/00) [2002] ECR I-4839

Facts: Here, the decision of the Court of Appeal for Western Sweden was subject to appeal to the Swedish Supreme Court, but only with leave from the latter court.

Held: The fact that the merits of the appeal were subject to a prior declaration of admissibility by the Supreme Court did not deprive the parties of a judicial remedy. If a question of [EU] law arose, the Supreme Court would be under an obligation, under [Article 267(3)], to refer the matter to the Court of Justice either at the stage of considering admissibility or at a later stage.

CILFIT: avoiding the obligation to refer

The central purpose of Article 267 is to prevent the creation, in any Member State, of a body of national case law that is out of line with EU law. It would therefore be reasonable to conclude that the obligation on courts of last resort to refer questions of EU law to the (p. 57) Court of Justice should be absolute and unqualified. Indeed, the wording of Article 267(3) is apparently unequivocal—courts of last resort ‘shall bring the matter before the Court of Justice’. However, in CILFIT, the Court of Justice acknowledged that there are exceptions to this obligation. The starting point for the national court must be whether a decision on the question of EU law is necessary to enable it to give judgment.

CILFIT Srl v Ministero della Sanita (Case 283/81) [1982] ECR 3415

Facts: The Italian Supreme Court referred to the Court of Justice a question concerning its obligation to refer in the context of a challenge to an Italian levy on imported wool under Regulation 827/68. The Ministry of Health argued that the interpretation of the Regulation was so obvious as to rule out any doubt as to its meaning and that this obviated the need for a reference. The claimant importers maintained that since a question of [EU] law had arisen, the Supreme Court could not, as a court of last resort, escape its obligation to refer.

Held: Affirming the relationship between [Article 267(2) and (3)] the Court declared that a national court of last resort has the same discretion as any other national court to ascertain whether a decision on a question of [EU] law is necessary to enable it to give judgment. Accordingly, a national court of last resort has no obligation to refer where a question of [EU] law is not relevant. Further, a national court of last resort is not obliged to refer if the Court of Justice has previously ruled on the point or where the correct interpretation of [EU] law is so obvious as to leave no scope for reasonable doubt as to its meaning. Nonetheless, in all these circumstances, national courts of last resort are free to bring the matter before the Court of Justice if they consider this to be appropriate.

Development of precedent

In setting out the ‘previous ruling’ exception in CILFIT, the Court of Justice was reiterating its earlier conclusion in Da Costa.

Da Costa en Schaake NV v Nederlandse Belastingadministratie (Cases 28–30/62) [1963] ECR 31

Facts: A chemical importer challenged Dutch import duties in the Dutch court. The facts and issues of interpretation were materially identical to those raised previously in Van Gend.

The Court began by pointing out that [Article 267(3)] ‘unreservedly’ requires national courts of last resort to refer every question of interpretation raised before them. However, despite that requirement, the Court concluded that ‘the authority of an interpretation … already given by the Court may deprive the obligation of its purpose and thus empty it of its substance. Such is the case when the question raised is materially identical with a question which has already been the subject of a preliminary ruling in a similar case.’

Nonetheless, the Court emphasized that [Article 267] allows any national court to refer questions of interpretation again.

Held: In response to the question raised, the Court restated its judgment in Van Gend. Declaring that the questions of interpretation were identical and that no new factor had been presented, the Court referred the national court directly to the Van Gend judgment.

(p. 58) Thus, Da Costa established that a previous ruling removes the obligation to refer where the facts and questions of interpretation are identical. The Court went further in CILFIT, holding that the same principle applies ‘where previous decisions … have already dealt with the point of law in question, irrespective of the nature of the proceedings which led to those decisions, even if the questions at issue are not strictly identical’.

Looking for extra marks?

Da Costa and CILFIT indicate the development of a system of precedent. The Court of Justice permits, indeed encourages, national courts to rely on its previous rulings, not only when the facts and questions of interpretation are identical but also when the nature of the proceedings is different and the questions are not identical.

Moreover, as has been seen, preliminary rulings on validity and interpretation are binding, not only on the parties to the dispute but also in subsequent cases.

Nevertheless, the binding effect of a preliminary ruling does not preclude national courts from seeking further guidance from the Court of Justice. The Court retains the right to depart from its previous rulings and may do so, for instance, when a different conclusion is warranted by different facts.

Looking for extra marks?

The development of precedent, together with the binding effect of preliminary rulings, has brought a subtle change to the relationship between the Court of Justice and national courts. Whereas that relationship was originally perceived as horizontal, its roots firmly grounded in cooperation, it is increasingly becoming vertical in nature, with the Court of Justice occupying a position of superiority to national courts.

Doctrine of acte clair

The term acte clair, which translated literally means ‘clear act’, is applied to a provision of EU law whose interpretation is clear or, as enunciated in CILFIT, is ‘so obvious as to leave no scope for reasonable doubt as to its meaning’. According to CILFIT, when the meaning is clear, there is no need to refer. Whilst this exception appears to allow national courts ample opportunity to avoid making references, CILFIT narrowed its scope to a considerable degree. The national court must be convinced that the matter is equally obvious to the courts of the other Member States and the Court of Justice. CILFIT emphasized that [EU] law is drafted in several languages, uses terminology that is peculiar to it, and must be placed in its context; legal concepts do not necessarily have the same meaning in [EU] law and the law of the various Member States.

It would be surprising to encounter many national courts with sufficient linguistic ability to be able adequately to bear all these matters in mind. The CILFIT criteria are difficult to satisfy and, in practice, national courts have tended to interpret acte clair more loosely.

It is now apparent, however, that too broad an approach to the application of acte clair carries risks, for instance where a national court of last resort avoided a reference in reliance (p. 59) on acte clair and one party was deprived of EU law rights as a result. In Köbler v Austria (Case C-224/01) the Court of Justice held that state liability in damages would arise if it was manifestly apparent that a national court had failed to meet its obligations under [Article 267(3)], for instance by misapplying the acte clair doctrine. More recently in Traghetti del Mediterraneo SpA v Italy (Case C-173/03) the Court declared that it could not rule out liability for damage caused by ‘manifest errors’ of interpretation of [EU] law by a court of last instance.

More recently still, in July 2014, the Court of Human Rights ruled in Dhahbi v Italy (App No 17120/09) that the refusal of a court of last instance to make a reference to the Court of Justice without providing reasons for such refusal will breach the right to a fair trial under Article 6 of the European Convention on Human Rights.

Revision tip

Think about the circumstances in which a national court of last resort can legitimately decline to refer. Be familiar with the authorities.

Discretion to refer

Article 267(2) sets out the power, or discretion, of every national court to refer questions of interpretation or validity of EU law. It provides that ‘any court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon’. Importantly, however, the power to refer does not deprive a lower national court of the right to reach its own conclusions on the meaning of EU law and to decline to make a reference. That is so even if, in the terms of Article 267(2), a decision on the question is ‘necessary’ to enable it to give judgment. Article 267 is designed to ensure that any ‘necessary’ questions of EU law will ultimately be referred at final appeal stage.

References on validity

National courts have no power to declare EU law invalid (Foto-Frost v Hauptzollamt Lübeck-Ost (Case 314/85)). Consequently, if a national court’s decision depends upon the validity of an EU measure, it must make a reference. Here, a national court may grant interim relief by temporarily suspending a national measure which is being challenged on the grounds of the validity of the EU measure on which it is based (Zuckerfabrik Süderdithmarschen v Hauptzollamt Itzehoe (Case C-143/88)).

Guidance on the exercise of the discretion

The Court of Justice has provided guidance on the exercise of the Article 267(2) discretion. The English courts have also made declarations on this matter which have developed over time. Whilst earlier cases demonstrated a reluctance to make references (see Lord Denning (p. 60) in Bulmer Ltd and another v Bollinger SA and Others [1974]), later cases demonstrate a recognition of the advantages of the Court of Justice in interpreting [EU] law and reflect a more positive approach to exercising the discretion.

Whilst guidance from the Court of Justice clearly carries more authority than any statements of national courts, neither can fetter the Article 267(2) discretion. Lower courts remain free to refuse to make a reference. How, then, is the discretion to be exercised?

Relevance

Dzodzi v Belgium (Cases C-297/88 & 197/89), concerning an interpretation of [EU] law which bore directly on the interpretation of Belgian national law, established that it is for the national court to determine the relevance of the questions referred. As noted later, the Court of Justice has rejected references seeking an interpretation bearing no relation to the main action, though such cases are rare.

Acte clair

Having established relevance, the next consideration for the national court is likely to be whether the provision of EU law is clear. If it is, a reference will not be necessary. In this respect, the CILFIT criteria for acte clair provide useful guidance. As already noted in relation to the obligation to refer, because these criteria demand a significant level of language expertise on the part of the national court, as well as an overview of EU law, in reality they are not easily satisfied. Moreover, as Bingham J (as he then was) pointed out in the English High Court in Commissioners of Customs and Excise v Samex [1983], the Court of Justice has distinct advantages that are not necessarily enjoyed by a national court. It has the ability to make comparisons between [EU] texts in different language versions, has a panoramic view of the [EU] and its institutions, and possesses detailed knowledge of [EU] legislation. Later, Sir Thomas Bingham MR (as he later became) in R v Stock Exchange, ex parte Else (1982) Ltd [1993] again referred to the advantages of the Court of Justice in interpreting [EU] law, declaring that ‘if the national court has any real doubt, it should ordinarily refer’.

Of course, if judges from a single Member State are unable to agree on the interpretation of a particular measure, it is not possible for them to conclude that the law is acte clair. A recent example is found in MB v Secretary of State for Work and Pensions [2016] concerning an equal treatment directive on state benefits. As the court was divided on the question of whether the directive applied to a domestic requirement for a transgender person to be unmarried in order to receive a state pension, the Supreme Court held that a reference to the Court of Justice was needed to resolve the dispute.

In R (on the application of OJSC Rosneft Oil Co) v HM Treasury [2015] the English High Court specifically drew attention to the potential for inconsistency across all courts of the EU and held that a reference was needed as the court could not be confident that the same conclusions (on the merits of the claimant’s arguments) would be reached by all.

(p. 61) A previous ruling does not preclude a reference

A previous ruling by the Court of Justice on a similar question does not preclude a reference (Da Costa). As noted earlier, in Da Costa the question referred was substantially the same as that referred in Van Gend. Nonetheless, the Court affirmed that [Article 267(2)] allows a national court, if it considers it desirable, to ‘refer questions of interpretation to the Court again’. Thus a reference was not ruled out, although in responding to the question in Da Costa, the Court simply repeated its judgment in Van Gend.

National rules of precedent

National rules of precedent have no impact on the discretion to refer (Rheinmühlen-Düsseldorf v Einfuhr- und Vorratsstelle für Getreide und Futtermittel (Case 146/73)). This means that the ruling of a higher national court on an interpretation of EU law does not prevent a lower court in the national system from requesting a ruling on the same provisions from the Court of Justice.

Revision tip

Be familiar with and prepared to apply the guidance relating to the exercise of the discretion to refer including the benefits of the Court of Justice as set out in Samex.

Reform

The Court of Justice’s workload has risen significantly over the years and currently references for preliminary rulings can take around 20 months. Modifications to the Court’s Rules of Procedure have helped to alleviate the difficulties, for instance the provision for expedited hearings in urgent cases and the power to give preliminary rulings by reasoned order where an identical question has been dealt with previously. Other means of reducing the Court’s case load have been canvassed and discussed, notably in the paper ‘The Future of the Judicial System of the European Union’ (1999, produced by members of the Court of Justice and the Court of First Instance) and the Due Report (2000). These include restricting the power to make references to courts of last resort, removing the obligation to refer save for questions that are ‘sufficiently important’, and the creation of decentralized regional courts. The Treaty of Nice gave the Court of First Instance the power to give preliminary rulings, as specified by the Statute of the Court of Justice, though currently the Statute does not confer Article 267 jurisdiction on the General Court (formerly the Court of First Instance).

Brexit update

During the transitional period, the preliminary referencing system under Article 267 TFEU will continue as before with UK courts able to refer questions of EU law to the Court when deciding domestic disputes (Withdrawal Agreement, October 2019). Further, UK courts will (p. 62) retain a power to make references to the Court about the meaning of any aspects of part 2 of the Withdrawal Agreement for eight years beyond the end of the transition period. Thus, questions concerning the rights of EU citizens in the UK can continue to be referred until at the least the end of 2028.

Key cases

Case

Facts

Principle

CILFIT Srl v Ministero della Sanità (Case 283/81) [1982] ECR 3415

Claim before Italian magistrates: no right of appeal as the sum of money concerned was so small.

‘… national courts against whose decisions, as in the present case, there is no judicial remedy, must refer the matter to the Court of Justice.’

Costa v ENEL (Case 6/64) [1964] ECR 585

Challenge to an Italian levy on imported wool.

No obligation to refer if the question is not relevant; there is a previous ruling by the Court of Justice; or the correct interpretation of EU law is acte clair.

Da Costa en Schaake NV v Nederlandse Belastingadministratie (Cases 28–30/62) [1963] ECR 31

Interpretation of [EU] law bore directly on the interpretation of Belgian law.

It is for the national court to determine the relevance of the questions referred.

Dzodzi v Belgium (Cases C-297/88 & 197/89) [1990] ECR I-3763

The facts and questions of interpretation were materially identical to those raised previously in Van Gend.

A previous ruling by the Court of Justice does not preclude a reference.

Foglia v Novello (No 1) (Case 104/79) [1980] ECR 745 and Foglia v Novello (No 2) (Case 244/80) [1981] ECR 3045

Challenge in the Italian court to French taxes levied on imported liqueur wine.

No genuine dispute: reference refused.

Köbler v Austria (Case C-224/01) [2003] ECR I-10239

Köbler claimed that failure to refer deprived him of his [EU] law rights.

State liability in damages would arise if the national court of last resort had failed in its obligations, for instance by misapplying acte clair.

(p. 63) Lyckeskog (Case C-99/00) [2002] ECR I-4839

The decision of the Court of Appeal for Western Sweden was subject to appeal to the Swedish Supreme Court, but only with leave from the latter court.

The need for leave to appeal did not preclude a judicial remedy. If a question of EU law arose, the Supreme Court would be obliged to refer, either when considering admissibility or at a later stage.

Meilicke v ADV/ORGA AG (Case C-83/91) [1992] ECR I-4871

Reference concerning the Second Banking Directive.

Questions were hypothetical: reference refused.

Rheinmühlen-Düsseldorf v Einfuhr- und Vorratsstelle für Getreide und Futtermittel (Case 146/73) [1974] ECR 139

A German lower court sought a reference despite a ruling by a higher national court involving questions of [EU] law.

National rules of precedent have no impact on the discretion to refer: the ruling of a higher national court on an interpretation of EU law does not preclude a reference from a lower court.

Telemarsicabruzzo SpA v Circostel (Cases C-320–322/90) [1993] ECR I-393

No information provided on the facts and legal background.

National court had supplied insufficient information: reference refused.

Exam questions

Problem question

Maxisports SA, a French manufacturer of fitness equipment, agreed to supply rowing machines to Ben, a UK retailer. Under the contract, Ben reserved the right to reject the goods if they failed to comply with any relevant provisions of EU law. (Fictitious) Council Regulation 27/89 (‘the Regulation’) requires fitness equipment to be fitted with safety notices in a ‘permanent form’.

The machines arrived at Ben’s store in London. They carried safety notices attached to the machines with plastic tabs. Ben refused to take delivery, claiming that the machines did not comply with the Regulation because the notices were not in a ‘permanent form’. Ben brought proceedings in the High Court for return of the purchase price. Maxisports rejected this claim on the grounds that the rowing machines complied with the Regulation.

In the High Court it was established that the rowing machines had a working life of up to six years and that the safety notices were sufficiently secure to remain intact for between three and four years. The court was referred to an earlier House of Lords’ decision in which the words ‘permanent form’ in the Regulation had been interpreted to include any method of attachment that could reasonably be expected to endure throughout the period of the manufacturer’s guarantee. (p. 64) Their Lordships had reasoned that equipment became obsolete once a guarantee had expired, because repairs were so expensive. Counsel for Maxisports argued that, since Maxisports’ machines were guaranteed for three years, the safety notices were in a ‘permanent form’ and that therefore the machines complied with the Regulation. The High Court took the view that it was bound by the House of Lords’ interpretation and declined to make a reference to the Court of Justice. It gave judgment for Maxisports.

On appeal, the Court of Appeal disagreed with the House of Lords’ interpretation of ‘permanent form’ stating that these words clearly meant that the notices must be attached to fitness equipment in such a way as to remain intact throughout its working life. Nonetheless, taking the view that it was bound by the House of Lords’ interpretation, the court refused to make a reference to the Court of Justice, gave judgment for Maxisports, and refused leave to appeal to the Supreme Court.

Consider the application of Article 267 TFEU to this situation.

Essay question

Article 267 TFEU embodies a method of cooperation between national courts and the Court of Justice which ensures that EU law has the same meaning in all the Member States.

How far do you consider this to be an accurate evaluation of the Article 267 preliminary reference procedure?

Online resources

This chapter is accompanied by a selection of online resources to help you with this topic, including: