Essay question – chapter 3

'Article 267 TFEU embodies a method of co-operation 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?

Court of Justice's jurisdiction and the purpose of Article 267

• Under Article 267 TFEU the Court of Justice has jurisdiction to give rulings on questions of interpretation of EU law.
• The national court has a duty to apply the Court's ruling to the facts before it.
• Article 267 is not an appeals procedure but envisages a system of cooperation between the Court of Justice and national courts to ensure that EU law is interpreted uniformly across the Member States.

The scheme of Article 267

• Where it considers a decision on a question of EU law is necessary to enable it to give judgment, any court or tribunal may refer that question to the Court of Justice (the discretion to refer): Article 267(2).
• Where a question of EU law is raised before a national court against whose decision there is no judicial remedy under national law, that court must refer it to the Court of Justice (the obligation to refer): Article 267(3).
• The scheme of Article 267 is thus set up to provide for references to be made, where necessary, at some stage in national proceedings, before a case is finally concluded.

Discretion to refer

• The Court of Justice has provided guidance on how the Article 267(2) discretion might be exercised. The English courts have also made declarations on this matter, and these may still be influential post-Brexit. 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.

Relevance

• It is for the national court to determine the relevance of the questions referred (Dzodzi). If a question is not relevant, a reference will not be necessary.

Acte clair

• Similarly, a reference will be unnecessary if a provision of EU law is clear. In this respect, the CILFIT criteria for acte clair provide useful guidance. The matter must be equally obvious to other national courts. The national court must bear in mind that EU law is drafted in several languages; that EU law uses terminology that is peculiar to it; that legal concepts do not necessarily have the same meaning in EU law and the law of the various Member States; and that EU law must be placed in its context.
• Moreover, as Bingham J (as he then was) pointed out in the English High Court in Samex the Court of Justice has distinct advantages not necessarily enjoyed by a national court. It can 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 ex parte Else 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'.
• Because the CILFIT criteria for acte clair 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, suggesting that a reference will often be necessary.

Previous ruling

• A previous ruling by Court of Justice on a similar question does not preclude a reference, though it may make it unnecessary (Da Costa).

National rules of precedent

• National rules of precedent have no impact on the discretion to refer (Rheinmühlen). 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.
• Notwithstanding the guidelines, the discretion 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 questions of EU law will ultimately be referred at the stage of final appeal.
• However, the obligation to refer is not absolute (please see below).

Obligation to refer

• Given the central purpose of Article 267; to prevent the creation, in any Member State, of a body of national case law that is inconsistent with EU law; it would be reasonable to conclude that the obligation of courts of last resort to refer would be absolute and unqualified.
• However, in CILFIT the Court of Justice recognised exceptions to the obligation. A national court of last resort has no obligation to refer where a question of EU law is not relevant; where 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 (the doctrine of acte clair).

Relevance

• Where the question of EU law is not relevant to the national proceedings, there is no risk to consistent interpretation of EU law in that case.

Previous ruling

• Similarly, where the Court of Justice has already ruled on the point, consistency of interpretation is not compromised, since the national court must apply that ruling.
• In setting out the 'previous ruling' exception in CILFIT, the Court of Justice was re-iterating its earlier conclusion in Da Costa.
• Da Costa and CILFIT indicate the development of a system of precedent. The Court of Justice permits, and 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, preliminary rulings 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 a national court 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.
• 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, with its roots firmly grounded in cooperation, it is increasingly becoming vertical in nature, with the Court of Justice occupying a position of superiority to the national courts.

Acte clair

• As already noted, CILFIT defined the scope of this exception narrowly.
• The CILFIT criteria are difficult to satisfy and, in practice, national courts have tended to interpret acte clair more loosely, allowing them to avoid references.
• However, too broad an approach to the application of acte clair may carry risks, for instance, where a national court of last resort avoided a reference in reliance on acte clair and one of the parties was deprived of EU law rights as a result. In Köbler the Court of Justice held that state liability in damages would arise if it was manifestly apparent that a national court had failed to comply with its obligations under Article 267(3), for instance by misapplying the doctrine of acte clair.

Rejection of references

• Finally, the system of cooperation envisaged by Article 267 has not operated in cases where the Court of Justice has declined to accept a reference: where there is no genuine dispute between the parties (Foglia), where the questions referred are irrelevant or hypothetical (Meilicke), and where the national court has failed to provide sufficient legal or factual information (Telemarsicabruzzo).
• Where the dispute is not genuine or the questions are irrelevant or hypothetical, the consistency of interpretation of EU law is not put at risk.

Conclusion

Whilst it is true to say that Article 267 TFEU embodies a method of cooperation between national courts and the Court of Justice which, on the whole, ensures that EU law has the same meaning in all the Member States, this outcome is not always guaranteed. In particular, courts of last resort, in considering the clarity of EU provisions frequently tend to apply acte clair broadly, avoiding the obligation to refer.