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Preliminary Reference Procedure Direct Effect Notes

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TABLE OF CONTENTS
Introduction.....................................................................................................3
Summary..........................................................................................................3
I - Preliminary References.................................................................................3
Weatherill Ch. 7; Chalmers et al, Ch. 4...........................................................................4
II - Direct Effect, Indirect Effect and Incidental Effect..........................................8
A - Direct Effect.................................................................................................................... 9 1 - General......................................................................................................................... 9
Arts 288, 296-299 TFEU................................................................................................ 10
| B. de Witte, 'Direct Effect, Primacy and the Nature of the Legal Order'.....................10
Para I - Direct effect.................................................................................................. 11
I - Evolution of Direct Effect.................................................................................... 11 2 - Direct effect and sources................................................................................... 11 a - Treaty............................................................................................................. 11 b - Directives....................................................................................................... 12 c - General principles........................................................................................... 12 3 - Effet utile of direct effect...................................................................................12
Para II - Supremacy................................................................................................... 12
Para III - Reception of the doctrine at national level..................................................12
| S. Prechal, "Does Direct Effect Still Matter?" (2000) 37 CML Rev 1047......................14
| *M. Dougan, 'When worlds collide!' (2007) 44 CMLRev 931;......................................15
I - Which model is more conceptually alluring?....................................................15
A - Exclusion vs substitution............................................................................. 15
B - The irrelevance of the threshold criteria to exclusionary situations............16
C - the deeper underpinnings of the primacy and trigger models....................16
II - Which model is better supported by caselaw?................................................17
| Mancini, "The Making of a Constitution for Europe" (1989) 26 CML Rev 595.............18
| D. Leczykiewicz, 'Effectiveness of EU Law before National Courts'............................18
| Case 26/62 Van Gend en Loos;................................................................................... 20
| Case 43/75 Defrenne v. Sabena [1976] ECR 455;......................................................21
I - On direct effect of Art 157...............................................................................22
II - On not being bothered by the horizontal nature of the proceedings..............22
III - On the absence of retroactivity.....................................................................22 2 - The special case of Directives.................................................................................... 22
| Mancini (supra)........................................................................................................... 23
| Case 41/74 Van Duyn [1974] ECR 1337.....................................................................23
I - On the direct effect of Article 45 TFEU............................................................23
II - On the direct effect of a Directive...................................................................23
| CE, Ass., 22 decembre 1978, Ministre de l'interieur c/ Cohn-Bendit...........................24
| CE, Ass., 30 octobre 2009, Mme Perreux....................................................................25
| Case 148/78 Ratti [1979] ECR 1629;..........................................................................25
I - On directives having direct effect in principle (yes)........................................26
II - On directives having direct effect before transposition deadline (no)............26
| Case 152/84 Marshall [1986] ECR 723;......................................................................26
| Case C-188/89 Foster v. British Gas [1990] ECR I-3313..............................................27
| *Case C-91/92 Faccini Dori v Recreb [1994] ECR I-3325............................................28
| *Joined Cases C-397/01 to C-403/01 Pfeiffer and Others [2004] ECR I-8835;.............29
| Case C-144/04 Mangold [2005] ECR I-9981................................................................30
| Case C-555/07 Seda Kucukdeveci [2010] ECR I-365...................................................30
| Case C-176/12 Association de mediation sociale, judgment of 15 January 2014.......30
B - Indirect Effect (obligation of consistent interpretation).................................................30
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Page 1 | Case C-106/89 Marleasing SA v. La Comercial [1990] ECR I-4135;.............................31
| Case 80/86 Kolpinghuis Nijmegen [1987] ECR 3969 (criminal law limit)....................32
| Cases C-387 etc/02 Silvio Berlusconi [2005] ECR I-3565;...........................................32
| Case C-456/98 Centrosteel v. Adipol [2000] ECR I-6007............................................32
| Cases C-397/01 to C-403/01 Pfeiffer etc. [2004] ECR I-8835 (whole body of law)......32
| Case C-212/04 Adeneler [2006] ECR I-6057 (duty to refraim from compromising EU
law)............................................................................................................................... 34
| C-268/06 Impact [2008] ECR I-2483 (see paras. 100-103 on the rule against contra legem interpretation);................................................................................................... 34
| Case C-282/10 Dominguez (24 January 2012)............................................................34
| Case C-441/14 Dansk Industri (this is the Ajos preliminary reference!)......................35
C - Incidental Effect/ application in "triangular" situations.................................................36
| Case C-194/94 CIA Security International [1996] ECR I-2201;....................................36
| Case C-443/98 Unilever Italia v. Central Food [2000] ECR I-7535...............................37
| Case C-159/00 Sapod Audic v Eco-Emballages SA......................................................39
| *Case C-201/02 R (Wells) [2004] ECR I-723................................................................40
I - On the absence of direct effect of Directives...................................................40
II - On the incidental effect of directives..............................................................40
| Case C-152/07 Arcor [2008] ECR I-5959.....................................................................40
| Dubout, "L'invocabilite d'eviction des directives dans les litiges horizontaux" RTD Eur.
46(2) 277 (2010).......................................................................................................... 41
I. - Les complications du regime de l'eviction......................................................41
A. - Des complications averees : l'eclatement du regime de l'eviction..............41
B. - Des complications a venir : l'amenagement du regime de l'eviction..........41
II. - Les contradictions du recours a l'eviction......................................................42
A. - L'ambivalence des fondements du recours a l'eviction...............................42
B. - L'incoherence des prolongements du recours a l'eviction..........................42
| P. Craig, 'The legal effect of Directives: policy, rules and exceptions' (2009) 34 ELRev

349............................................................................................................................... 42
Questions.......................................................................................................43
Notes.............................................................................................................43

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Page 2 I - PRELIMINARY REFERENCES
WEATHERILL CH. 7; CHALMERS ET AL, CH. 4.
The functions of the preliminary reference procedure:
1) Development of EU law: in 2012, 64% of cases the CJEU heard were preliminary reference cases, and this is its main avenue for developing EU law, for unifying schema and categories of cases. But this places the CJEU at a very powerful position,
in that it essentially has a monopoly over the development of the EU legal order. This prompted concerns:
a. Judicial activism: two related claims -
i. Judicial legislation: the allegation is that the CJEU sometimes engages in contra legem interpretations of EU law. Perhaps these concerns are prompted by the fact that it is very difficult to amend a disliked CJEU
judgment (requires Treaty amendment or passing a new EU legislation depending on what is being interpreted) so there is perhaps a need for greater judicial sensitivity.
ii. It pushes towards greater integration, taking insufficient account of other interests:

1. A "euro-law industry" has been more active in bringing preliminary references than other actors, so as to create a tilt in favour of preliminary references arguing for provisions to cover activities not previously anticipated

2. Teleological reasoning by the CJEU, interpreting legislation in light of some greater telos (a greater objective)
Conway: several fundamental problems of teleological reasoning - (1) uncertainty and unpredictability because the telos (ends) can be understood in different ways and at different levels of generality, and the CJEU often identifies the highest level of generality while ignoring the contestability of the extent of legal integration. (2) it creates an
"epistemological asymmetry" in how EU law is interpreted because ordinary citizens do not engage in meta-teleological interpretation but adhere to lex specialis (the most specific,
relevant legal provisions).
But teleological reasoning also has its supporters, who point to the institutional role of the CJEU in securing a functional legal order.
But the critics and supporters talk past each other: even if the teleological interpretation is justified, it is still slippery and unpredictable.
b. Lack of expertise: because it hears cases on a very wide array of activities; the advantage of a single court is ensuring coherence and generality of important
EU principles, but there is also a greater danger of mistakes as the Court doesn't have the knowledge required to appreciate the nuances of different fields of law. Ongoing debate as to whether specialized courts should develop:
the General Court (trade, competition and trade mark law) and Unified Patent
Court (patents) are steps in this direction, but still debates as to whether this balance is correct.
2) Judicial review of EU institutions (Article 267 TFEU): the CJEU has jurisdiction to rule on the validity of EU legislation and administrative acts of Union institutions.
There is a duty on national courts to allow challenges to the legality of EU acts, and
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Page 3 sometimes to refer these in preliminary references, making the procedure a central instrument for judicial review (as private parties do not need to meet the restrictive locus standi requirements of bringing actions in front of the CJEU).
3) Preserving the unity of EU law: uniform application of EU law requires (according to the CJEU" that EU law "normally be given an autonomous and uniform interpretation throughout the EU" (Commission v Spain). This can be threatened in two ways: (1) different MSs interpreting a provision differently, (2) one MS saying a provision is valid and another invalid. The CJEU's role therefore has two elements:
interpretation and validity.
4) Dispute resolution: Article 267 grants national courts a monopoly on adjudication;
the CJEU merely rules on points of EU law. This means that the procedure will be longer than it otherwise would ? tension. Thus, Article 267(2) has been interpreted to mean that a reference should only be made if that point of EU law meaningfully contributes to the resolution of the dispute (Foglia (no. 2)). This was contentious because it allowed the CJEU to (1) review the national court's decision to refer and (2)
examine the factual background to the dispute ? debate about whether this transgressed on the national court's monopoly on fact-finding. This line of caselaw has subsequently been attenuated (Leclerc Siplec, Eau de Cologne).
How well is this managed? This depends on three factors: (1) the circumstances where references are made, (2) authority of CJEU's judgments and (3) protection of litigants'
position pending findal judgment.Circumstances of referral:
o Courts must refer:
-Where it considers an EU measure may be invalid or
-Courts against whose decision there is no judicial remedy in national law (Article 267(3)), which includes:
-Highest courts of the nation
-Any court where parties have been denied leave to appeal to a higher court
If courts make a sufficiently manifest mistake not to refer, then there can be damages against the state (Kobler), but this remedy might only be a paper one because the redress is against the state not the courts, so there is no direct incentive for the court in question to refer. Also, it would require a court of first instance to rule negatively on the actions of the senior court, which is quite implausible.
o Courts may refer: when they fall into Article 267(2), i.e. where there is a judicial remedy against their decision
EXCEPTION: courts that must otherwise refer do not have to refer in two situations -
o Acte eclaire: a materially identical matter has already been decided by the CJEU
o Acte clair: the EU provision is so clear that there is no reasonable doubt about its interpretation
But an interpretation of the acte clair doctrine in CILFIT was so narrow as to make it meaningless, but the significance of the case goes to whether there should be a system of universal jurisdiction or not, and suggests that in some circumstances, the answer is that there should not. Some argue that this creates a lacuna in judicial protection by providing situations where individuals would not have access to the
CJEU; others argue that it is a valve for defusing potential conflict by allowing national courts to decide matters exclusively by themselves and avoid overt judicial rebellion.

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Page 4 o

o

There is evidence that MSs do not interpret CILFIT literally: between 1978 and 2001 -
-Conseil d'Etat applied acte clair 191 times vs. 18 preliminary references
-Austrian Constitutional Court made references in 1/2 of the cases
-Polish, Slovak, Maltese, Czech constitutional courts never made a reference
-Italian Constitutional court made 1 reference
-Portuguese Supreme Court made 3 references
Thus there have been calls for reform:
-A "green light" procedure (national courts submit draft answers with their references, and if the CJEU approves, it states that it does not object, and if it disapproves, it decides the matter itself)
-Broadening acte clair: if the concern is uniformity, then the CJEU should only concern itself with cases that go significantly to that question
(Broberg)Binding effect of CJEU judgments:
o a preliminary reference ruling binds the referring national court, but it can refer back if it is dissatisfied or unclear about the meaning.
-Compliance is high (96.3% according to Nyikos), and overt challenges and non-observance is rare. Less direct ways of non-observance was more common:
-Narrow constructions of the EU norm
-Weak remedies
-A contrario reasoning
-Application of domestic rather than EU norms
-Sometimes the CJEU tries to circumvent this by sending back rulings so detailed as to leave little discretion (or conversely defuse conflict by sending back rulings sufficiently vague to allow national courts considerable discretion)
o a preliminary reference declaring an EU measure illegal binds all courts and authorities of the Union (this actually isn't so self-evident because stare decisis and precedent do not formally exist in the EU) (ICC)
o a preliminary reference interpreting EU law binds all courts and administrative authorities in the Union (Kuhne and Heitz), but this poses real challenges for legal certainty because their binding force applies to all relationships governed by the legal instrument since it entered into force
(because the CJEU is assumed merely to be declaring the pre-existing state of the law), but in most cases this is resolved by national limitation periods.Protection of the parties pending judgment: in 2012, average of 15.7 months between time of reference and time of judgment. This can mean that the ruling arrives too late to be of use, or conversely, the delay can be used as litigation strategy to exert undue pressure on the other side.
o Mechanisms to address the problem:
-Expedited procedure (upon request from national courts to the President of the Court; such matters are decided within 15 days)
-Urgent procedure (with regard to a person in custody)
o But the use of these procedures is rare, so that in most cases, the problem is addressed with interim measures.

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Page 5 If compatibility of national law with EU law is challenged: the national court must do everything to secure the effectiveness of the Court's judgment (Factortame)
-If the validity of an EU law is challenged: interim relief is analogous to where the EU measure is challenged directly before the Court, i.e.
subject to four (cumulative) conditions -
-the national court had serious doubts as to the validity of the EU
measure
-relief is urgent and necessary to avoid serious and irreparable damage to the party
-account must be taken to the damage to the Union as a whole
-national court must ask for financial guarantees from the applicant if interim relief poses a financial risk to the Union
The differences between the tests results in applicants whose interests are prejudiced in very similar ways to be treated very differently, because the CJEU
is prioritizing different systemic concerns (effectiveness of EU law vs. financial risks for the Union) which might obscure the individual needs in particular cases.- on the interpretation of EU law:-

Case 6/64 Costa v. ENEL [1964] ECR 585 (obligation to refer)
o EU law takes precedence over national law and any contradictory national laws can't be applied by national courts

Craig and de Burca identify four arguments:
-Contractarian argument - MS have accepted the EU legal system on the basis of reciprocity and can't be allowed to give precedence to their own laws
-Functional argument - if the force of EU law varied between states its objectives would be impossible to achieve
-Egalitarian argument - it's a reciprocal system, EU law should apply equally in all MS and if MS want the benefits of EU membership they have to follow its laws
-Analytical argument - Treaty provides that regulations are directly effective and this wouldn't make sense if they could be overridden by contrary national laws
-But Craig and de Burca think this is least convincing because it says nothing about other types of legislation and it's about becoming immediately effective without needing further implementing measures rather than overriding contrary national laws

National court involved had an obligation to make a preliminary reference - its decisions could be appealed but not in this case because the sum of money involved was too small - endorses concrete theory of obligation to refer
Case 104/79 Foglia v. Novello 1 [1980] ECR 745 (refusal to give a reference for lack of genuine dispute)
o Facts: Foglia had contracted to sell Italian liqueur to Novello in France, with the proviso that Novello would reimburse any taxes Foglia incurred unless these were levied contrary to EU law. Thus Novello refused to reimburse a small amount of tax (70 euros) on the ground that it was contrary to EU law. A test case was brought before an Italian court on the compatibility of the tax (both

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Page 6 --

sides argued that the taxes were illegal, in this case the amount paid was derisory, and Foglia indicated that it was litigating on behalf of Italian traders).
o CJEU: refused to give judgment to the preliminary reference because there was no genuine dispute.
Case 244/80 Foglia v. Novello 2 [1981] ECR 3045 (that the CJEU will only respond to references if this is necessary for the resolution of the dispute at hand)
o The Italian court re-referred the matter asking what the roles of the national court and CJEU were in such matters.
o CJEU: Article 267 is based on cooperation, which entails a division of duties between national courts and the CJEU. It is the responsibility of national courts to assess the need to obtain a preliminary ruling to enable it to give judgment,
and to explain why they consider that a reply to their questions is necessary to enable them to give judgment. The duty of the CJEU is not that of delivering
"advisory opinions on general or hypothetical questions but of assisting in the administration of judtice in the Member States". It does not have jurisdiction to respond to questions of interpretation submitted to it within the framework of procedural devices arranged by the parties in order to induce the CJEU to give its views on problems of EU law.
Case 283/81 CILFIT [1982] ECR 3415 (on the application of the acte clair doctrine)
o Facts: a group of textile firms challenged levies imposed by the Italian Ministry of Health on wool imported by them from outside the EU. An EU Regulation prohibits levies imposed on "animal products", so the question was whether wool was an animal product, and whether this question of law was sufficiently obvious (or acte clair) that no preliminary reference was necessary.
o CJEU: first talked about the acte eclaire doctrine as encompassing (1) the question raised is materially identical with a question already subject to a preliminary ruling in a similar case and (2) the CJEU has already dealt with the point of law in question though the question at issue is not strictly identical.
Then talked about the acte clair doctrine ("the correct application of [Union]
law [is] so obvious as to leave no scope for any reasonable doubt as to the manner in which the question is to be resolved"):
-The matter must be equally obvious to the courts of other MSs and the
CJEU, taking into account the fact that:
-Community legislation is drafted in several languages and the different language versions are equally authentic - thus,
interpretation involves a comparison of all these versions
-Even where the different versions are entirely in accord with each other, EU law uses terminology peculiar to it
-Legal concepts might not have the same meaning under EU law and in MS law
-Every provision of EU law must be placed in its context and interpreted in the light of the provisions of EU law as a whole, with regard to (1) its objectives and (2) state of evolution on the date of application of the provision in question.
Case 83/91 Meilicke [1992] ECR I-4871 (refusal to hear a reference for hypothetical question + referring court had not given enough factual and legal context)
o Facts: a lawyer who had publicly criticised aspects of German company law and argued they were contrary to an EU directive bought one share in a company and sued them under the relevant provisions - both parties wanted a preliminary reference

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