Preliminary References as a Means for Enforcing EU Law

2017 ◽  
Author(s):  
Morten Broberg
Keyword(s):  
Member State ◽  
National Court ◽  
Eu Law ◽  
State Party ◽  
Member States ◽  
Reference Procedure ◽  
National Courts ◽  
Court Of Justice ◽  
Important Means

This chapter examines to what extent and how the preliminary reference procedure provided in Article 267 TFEU can be used as a means for private parties to enforce EU law against the Member States. The procedure enables national courts to apply to the Court of Justice to obtain a ruling on the interpretation or validity of an EU legal act. It has in fact become a highly important means for private parties’ enforcement of EU law. Today, the preliminary reference procedure has attained such importance as an enforcement measure that the prospect of a reference to the Court of Justice can of itself induce a Member State party to proceedings before a national court to settle the dispute. Indeed, the preliminary reference procedure is sometimes referred to as ‘indirect enforcement’.

Preliminary References

2018 ◽  
Author(s):  
Morten Broberg ◽  
Niels Fenger
Keyword(s):  
European Union ◽  
Member State ◽  
National Court ◽  
Preliminary Ruling ◽  
Eu Law ◽  
The European Union ◽  
Reference Procedure ◽  
National Courts ◽  
Court Of Justice ◽  
Court Of Appeal

A reference for a preliminary ruling is a request from the national court of a Member State to the Court of Justice of the European Union to give an authoritative interpretation of an EU act or a decision on the validity of such an act. In this situation, the Court of Justice does not function as a court of appeal that rules on the outcome of the main proceedings before the referring court: it makes judgment neither on the facts in the main proceedings nor on the interpretation and application of national law. Moreover, in principle it does not itself pronounce on the concrete application of EU law in the main proceedings before the referring court. Finally, while a preliminary ruling is normally given in the form of a judgment, the ruling is addressed to the referring court and not to the parties to the main proceedings. Only the referring court’s subsequent decision can be enforced against those parties. The preliminary reference procedure is therefore an expression of the interplay and allocation of tasks between national courts and the Court of Justice.

scholarly journals Lower Instance National Courts and Tribunals in Member States and Their Judicial Dialogue with the Court of Justice of the European Union

2021 ◽  
Vol 4 (2) ◽  
pp. 19-36
Author(s):  
Graham Butler
Keyword(s):  
European Union ◽  
Case Law ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
Reference Procedure ◽  
Eu Member States ◽  
National Courts ◽  
Court Of Justice ◽  
Recent Developments

The vast majority of cases that are submitted to the Court of Justice of the European Union (the Court) through the preliminary reference procedure that is contained in Article 267 TFEU come from lower instance national courts and tribunals in EU Member States. As a result, it is not always appellate courts, or higher instance national courts and tribunals, such as courts of final appeal, which make orders for reference. Judicial dialogue between national courts and the Court through this Article 267 TFEU procedure is notable for its particular quality of it being open to receiving orders for reference, for an interpretation of EU law from national courts and tribunals – of any instance – from first instance, to final instance. But can this judicial dialogue between lower instance national courts and tribunals and the Court be impeded by national courts’ more senior national Brethren, with appeals being allowed against orders for reference within national legal orders? The case law of the Court on such an issue has been progressive, in that it developed slowly over time, and the Court, by 2021, becoming increasingly assertive. As will be analysed in this article, the Court’s approach to the arising issue has clearly been an attempt to balance the interests of judicial dialogue on the one hand, and national rules on the other. Yet, with the Court’s broader case law tightening the understanding of who constitutes the European judiciary, and ensuring that all national courts and tribunals remain independent from executive interference in EU Member States, the article commends recent developments, but makes the further plea for an affirmative judgment of the Court to not permit, as a matter of EU law, appeals against orders for reference made by lower instance national courts and tribunals in EU Member States, in the name of preserving judicial dialogue through the preliminary reference procedure.

Review by Constitutional Courts of the Obligation of National Courts of Last Instance to Refer a Preliminary Question to the Court of Justice of the EU

2015 ◽  
Vol 16 (6) ◽  
pp. 1663-1700 ◽  
Author(s):  
Clelia Lacchi
Keyword(s):  
European Union ◽  
Eu Law ◽  
The European Union ◽  
Constitutional Courts ◽  
Member States ◽  
Constitutional Review ◽  
National Courts ◽  
Court Of Justice ◽  
Judicial Remedy ◽  
The Eu

The Constitutional Courts of a number of Member States exert a constitutional review on the obligation of national courts of last instance to make a reference for a preliminary ruling to the Court of Justice of the European Union (CJEU).Pursuant to Article 267(3) TFEU, national courts of last instance, namely courts or tribunals against whose decisions there is no judicial remedy under national law, are required to refer to the CJEU for a preliminary question related to the interpretation of the Treaties or the validity and interpretation of acts of European Union (EU) institutions. The CJEU specified the exceptions to this obligation inCILFIT. Indeed, national courts of last instance have a crucial role according to the devolution to national judges of the task of ensuring, in collaboration with the CJEU, the full application of EU law in all Member States and the judicial protection of individuals’ rights under EU law. With preliminary references as the keystone of the EU judicial system, the cooperation of national judges with the CJEU forms part of the EU constitutional structure in accordance with Article 19(1) TEU.

3. Preliminary rulings: Article 267 TFEU

2020 ◽  
pp. 47-64
Author(s):  
Matthew J. Homewood
Keyword(s):  
European Union ◽  
National Court ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
Court Of Justice

This chapter discusses Article 267 of the Treaty on the Functioning of the European Union (TFEU). Article 267 TFEU (ex Article 234 EC) 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).

6. The preliminary ruling (Article 267 TFEU)

2020 ◽  
pp. 155-176
Author(s):  
Nigel Foster
Keyword(s):  
European Union ◽  
Preliminary Ruling ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
Reference Procedure ◽  
Procedural Law ◽  
Court Of Justice

This chapter examines the procedural law of the European Union (EU), focusing on Article 267 of the Treaty on the Functioning of the European Union (TFEU). It explains that Article 267 is the reference procedure by which courts in member states can endorse questions concerning EU law to the Court of Justice (CJEU). Under this Article, the Court of Justice of the European Union (CJEU) has the jurisdiction to provide preliminary rulings on the validity and interpretation of acts of the institutions, bodies, offices, or agencies of the Union and on the interpretation of the Treaties. This ensures legal unity.

6. The preliminary ruling (Article 267 TFEU)

2018 ◽  
Author(s):  
Nigel Foster
Keyword(s):  
European Union ◽  
European Court Of Justice ◽  
Preliminary Ruling ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
Reference Procedure ◽  
Procedural Law ◽  
Court Of Justice ◽  
European Court

This chapter examines the procedural law of the European Union (EU), focusing on Article 267 of the Treaty on the Functioning of the European Union (TFEU). It explains that Article 267 is the reference procedure by which courts in member states can endorse questions concerning EU law to the European Court of Justice (CoJ). Under this Article, the Court of Justice of the European Union (CJEU) has the jurisdiction to provide preliminary rulings on the validity and interpretation of acts of the institutions, bodies, offices, or agencies of the Union and on the interpretation of the Treaties.

scholarly journals The obligation of national Courts against whose decision there is no judicial remedy to refer questions to the Court of Justice of the European Union

2016 ◽  
Vol 17 (31) ◽  
pp. 24-36
Author(s):  
Valentin Paul Neamt
Keyword(s):  
European Union ◽  
Case Law ◽  
The European Union ◽  
Member States ◽  
Reference Procedure ◽  
National Courts ◽  
Court Of Justice ◽  
Judicial Remedy ◽  
The Subject

Abstract The present paper presents the obligation that courts in the member states of the European Union have to refer questions to the Court of Justice of the European Union, with a focus on courts against whose decision there is no judicial remedy under national law. The paper starts by presenting the applicable framework regarding the preliminary reference procedure, then focuses on analyzing the exceptions to national court’s duty under article 267 TFEU, with a focus on the direction in which the case law is heading based on the most recent judgments handed down by the Court of Justice of the European Union in 2015, finally presenting the author’s conclusions and observation on the subject.

scholarly journals Goods in Transit and Intellectual Property Under the EU Law and Caselaw of the Court of Justice

2014 ◽  
Vol 14 (2) ◽  
pp. 93-104
Author(s):  
Radim Charvát
Keyword(s):  
Intellectual Property ◽  
Member State ◽  
Case Law ◽  
Trade Mark ◽  
State Courts ◽  
Eu Law ◽  
Member States ◽  
Court Of Justice ◽  
In Transit ◽  
The Eu

Abstract The paper addresses the issue whether customs authorities of Member States are entitled to suspend or detain goods in transit (i.e., products directing from one non- Member State to another non-Member State through the EU) and the evolving case-law of the Court of Justice related to this matter. Prior to the judgment in Philips and Nokia cases, a so-called manufacturing fiction theory was applied by some Member State courts (especially Dutch courts). According to this theory, goods suspended or detained by customs authorities within the EU were considered to be manufactured in the Member State where the custom action took place. In the Philips and Nokia judgments, the Court of Justice rejected this manufacturing fiction theory. But the proposal for amendment to the Regulation on Community trade mark and the proposal of the new Trademark directive, as a part of the trademark reform within the EU, go directly against the ruling in the Philips and Nokia cases and against the Understanding between the EU and India.

When Ought a Reference for a Preliminary Ruling be Made?

2021 ◽  
pp. 249-266
Author(s):  
Morten Broberg ◽  
Niels Fenger
Keyword(s):  
National Court ◽  
Test Cases ◽  
Preliminary Ruling ◽  
Eu Law ◽  
Similar Question ◽  
Reference Procedure ◽  
Court Of Justice ◽  
Appeal Procedure

Chapter 7 concerns the situation where the national court has discretion in its decision as to whether or not it should refer a preliminary question to the Court of Justice. It analyses (1) the different criteria that form the basis for the national court’s discretionary decision, (2) to what extent EU law interferes with that discretion, and (3) at what time in the proceedings it is best to make a preliminary reference. The chapter first identifies the different criteria that in general form the basis for the national court’s decision as to whether or not it should make use of the preliminary reference procedure. It then deals with the particular situation where a similar question is already pending before the Court of Justice or where the national court has a cluster of parallel cases before it and must decide whether to make a preliminary reference in all cases or only in one or a few test cases. Next, it discusses to what extent a national court not sitting as a court of last instance should refrain from posing a preliminary question because such a question could also be posed during a possible appeal procedure. Finally, chapter 7 examines at what stage of the proceedings it is most appropriate to refer a preliminary question and discusses to what extent points of fact and national law ought to be clarified before it is decided whether to make use of the preliminary procedure.

6. Ensuring EU Laws Are Effective: Remedies and Art 267 TFEU

2017 ◽  
Author(s):  
Nigel Foster
Keyword(s):  
Preliminary Ruling ◽  
Direct Effects ◽  
Eu Law ◽  
Member States ◽  
Procedural Law ◽  
National Courts ◽  
Court Of Justice ◽  
State Liability ◽  
Cover Art ◽  
Direct Applicability

This chapter brings together a number of related issues indirectly linked to the preliminary ruling procedure under Art 267 TFEU—the vehicle by which the leading principles and remedies in EU law were developed by the Court of Justice; in particular, the means by which EU law could be enforced by individuals via the national courts, rather than by the Commission or other institutions, or member states in direct actions before the CJEU. The discussions cover Art 267 TFEU; direct applicability and direct effects; state liability; and national procedural law and the system of remedies.

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