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Preliminary Reference Procedure Notes

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Preliminary Reference Procedure Revision

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Preliminary Reference Procedure _______________________________________________________

Treaty Basis Art 267 TFEU Jurisdiction of the CoJ to give preliminary rulings regarding:
- Interpretation of treaties
- Validity/interpretation of secondary legislation Lower courts may give preliminary reference; courts of last instance must give preliminary reference Simmenthal (See 'Supremacy' doc - authority on setting aside national laws) Prelim ref in non-adversarial procedures (allowed but warned of the potential threat to the rule of law in this regard) - question setting aside national law that only the constitutional court would be able to do - could this be done by the lower court purely on the authority of the CoJ's preliminary ruling?
Held: yes it could - clarified prelim rulings are for the interpretation of EU - it is for the national court to enter into a factual interpretation

Scope of Prelim Ref Drodzi v Belgium: the wording of Art 267 does not preclude a reference to the CoJ if it is MS national law that is in question
 "since [Art 267 TFEU] is designed to ensure uniform interpretation in all MS of the provisions of Community law, the Court merely deduces from the letter and the spirit of those provisions trhe meaning of the Community rules at issue" Held: in this case it was not a genuine reference Leur-Bloom: a reference may only be where national legislation is aimed at the same purpose of EU law Total Belgium NV: prelim ref for interpretation of directive (to defend the objective of that directive being uniformly implemented) HOWEVER not unlimited scope:
- Art 275 TFEU no jurisdiction over CFSP
- Art 276 TFEU no jurisdiction over acts of police/security forces

Definition of 'court'

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