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Preliminary Reference Notes

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EU Law

Preliminary Reference



* Development of EU law (direct effect, supremacy)

* Maintenance of institutional balance

* Enhancement of individuals' interests (obl. to refer for court against whose decision there's no nat. remedy)

* Legal integration - uniformity/consistency of EU law
? ECJ: "veritable cornerstone of the operation of internal market" - plays a fundamental role in ensuring Treaty law retains its Comm. Character w/a view to guaranteeing EC law has same effect in all MS. Types of questions referred (i) Treaty interpretation (Art 267 (1)(a))used to make judgments on supremacy & DE ECJ merely interprets Treaty - no judgment on nat. law validity If incompatibility found, obl. on nat. court to redress situation

(ii) Validity & interpretation of EU institutions, bodies etc. acts (Art 267(1)(b))
= Chalmers: 2 striking features a) nat. courts monopoly over disputes involving points of EU law to be decided on nat. law, facts &
application of EU law Nat. courts act as gatekeepers to ECJ - no direct right of access to private parties
= ECJ: 3 stages of EU legal order (i) EU is autonomous legal order (ii) Requiring MS courts to interpret EU law uniformly (iii) By providing for direct relation b/w MS courts and ECJ, Art 267 enables this uniformity Who can refer (1) Body or tribunal - determined by ECJ on the basis of broad definition: factors a. established by law b. compulsory jurisdiction c. decisions of judicial, not admin, nature d. independence i. external - no intervention/pressure liable to jeopardise judgment ii. internal - impartiality
? Complex application Ref can be made only if there's a pending case b/f nat. court which leads to decision of judicial nature o Cartesio - ref couldn't be made b/c court was discharging admin function which didn't resolve dispute In the interest of uniformity, ECJ can rule on issues of validity & interpretation arising out of procedure of bodies to which govt. has assigned some adjudicatory function o Broekmeulen- Dutch Appeals Comm. hearing appeals from a body resp. for admission of docs
= Chalmers: rationale: any body deciding on EU law rights should be able to refer - if not, Cs would have to challenge through another body, adding to expense & delay, dis-incentivising parties from referral but could open floodgates whereby undertrained actors would overload the court.
= AG Colomer: definition is too wide; the strategy behind 267 was to create a conversation b/w ECJ & nat. courts - independent parts of executive not intended to be part of it. Practical consequence: allows bodies w/no legal training to formulate ref + admin actors have a chance to disrupt domestic judicial hierarchy and system of precedent by referring something they disagree with (2) With discretion/ obligation to refer
? Art 267(2) - discretion (any court or tribunal)
? Art 267(3) - court/tr. against whose decision there's no remedy in nat. law(unless CILFIT satisfied/issue previously decided)
- What bodies are covered?
a. abstract theory - bodies whose decisions are never subject to appeal b. concrete theory - bodies whose decisions aren't subject to appeal in that case (Costa v ENEL) o Costa v ENEL - magistrate, whose decisions were normally subject to appeal, could refer to ECJ b/c in that case sum of money too low for appeal to be made in nat. law.

somewhat distorting to nat. judicial hierarchy - lower court can refer even in the face of decision by a higher court ...
[?] NB: nat. court not obliged to raise matters of EU law on own volition but it can't be prevented from doing so by a rule of national law


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