Chapter 6 Guidance on answering assessment questions

Preliminary references

Discuss, with examples from case law, the obligations of national courts under Article 267 TFEU. 

Article 267 TFEU provides a mechanism whereby a national ‘court or tribunal’ (given an autonomous EU law definition according to the criteria laid down in Dorsch Consult Ingenieurgesellschaft mbH v Bundesbaugesellschaft Berlin mbH ((Case C-54/96)[1997] ECR I-496) may refer questions to the Court of Justice on the interpretation of EU law or the validity of EU secondary legislation. 

A reference under Article 267 TFEU is mandatory from a court or tribunal against whose decisions there is no judicial remedy in the form of the possibility of requesting leave to appeal (Magnavision v General Optical Council (No 1) [1987] 1 CMLR 887), but merely discretionary from other courts or tribunals.  This system is designed to ensure the uniform application of EU law and has been supplemented by a considerable body of caselaw. 

The Court of Justice has laid down a number of guidelines for the exercise of the discretion by the national courts, and national courts are obliged by the supremacy of EU law to take into account these guidelines when deciding whether or not to exercise the discretion to refer. 

Most importantly, a reference is unnecessary if the EU law at issue is acte clair (CILFIT and Lanificio di Gavardo SPA v Ministry of Health (Case 283/81) [1982] ECR 3415) or irrelevant (CILFIT).  The Court of Justice gave further guidelines in CILFIT regarding acte clair. A national court should consider whether the measure has the same clear meaning in all its authentic language texts, the possibility that any legal concepts referred to may not have equivalent meanings in the law of the EU and all Member States, and the current state of EU law.

The Court in CILFIT considered that a question would not be relevant, and therefore should not be referred, if the answer, regardless of what it might be, could not affect the outcome of the case.  The UK courts have explained the issue of relevance as requiring the court to consider whether the issue to be referred could be critical to the outcome of the case (R v International Stock Exchange of the UK and the Republic of Ireland Limited ex parte Else (1982) Limited and others [1993] 2 CMLR 677) or be substantially determinative of it (Commissioners of Customs and Excise v Samex ApS [1983] 3 CMLR 194). 

The Court of Justice has also held that a reference is likely to be unnecessary if there is a previous Court of Justice ruling on the question (Da Costa en Schaake NV and others v Nederlandse Belastingadministratie (Cases 28–30/62) [1963] ECR 31), although the national court may still refer if the question is different, or if it hopes or expects that the Court of Justice will reach a different decision. 

A reference is not precluded by national rules of precedent under which the referring court is bound to follow the decision of a higher national court on the issue of EU law (Rheinmühlen Düsseldorf v Einführ- und Vorratsstelle für Getreide und Futtermittel (Joined Cases 146 & 166/73) [1974] ECR 33). 

However, a reference should not be made if it is likely to be rejected by the Court of Justice because the dispute is not genuine (Foglia v Novello (No. 1) (Case 104/79) [1980] ECR 745), the facts and the legal context have not been explained (Criminal Proceedings against Grau Gomis and others (Case C-167/94) [1995] ECR I-1023) or the questions are hypothetical (Lourenço Dias v Director da Alfandega do Porto (Case C-343/90) [1992] ECR I-4573 ).

In addition, in Samex the English High Court outlined the advantages of making a reference: the Court of Justice is able to take an overview of the EU and its institutions, has a detailed knowledge of EU law and the working of the internal market, is able to receive submissions from other EU institutions and the Member States and to compare the meaning of the measure in all the EU languages, and is used to taking the creative and purposive approach to interpretation which EU law requires.

However, while the making of a reference is therefore desirable in the interests of promoting uniformity of EU law, it has a number of adverse consequences: it causes delays to the final disposition of the case and adds to the expense; and it increases the workload of the Court of Justice and thus increases delays in the EU legal system. It may also be contrary to the wishes of one or both parties. 

As mentioned above, a reference under Article 267 TFEU is mandatory from a court against whose decisions there is no judicial remedy under national law. However, the Court of Justice ruled in CILFIT that this obligation was not absolute and that in some circumstances a reference might only be discretionary. This is so if the question is not relevant, or there has been a previous Court of Justice ruling, or the doctrine of acte clair applies (all as explained above).  In addition, if it is likely that a particular reference will be rejected by the Court of Justice (for the reasons explained above), a reference will not be mandatory.

If it is decided that a reference should be made, whether discretionary or mandatory, it will usually be appropriate to defer the making of a reference until the factual and legal issues have been resolved (Irish Creamery Milk Suppliers Association v Ireland (Joined Cases 36 & 71/80) [1981] ECR 735). 

In summary, although national courts are mandated to refer questions of EU law if there no judicial remedy under national law against their decisions. This is not an absolute obligation in all circumstances and is subject to a number of exceptions; and while courts against whose decisions there is a judicial remedy have a discretion as to whether to refer, they are nonetheless obliged to take account of the judicial guidelines applicable to the exercise of the discretion.