EU Foundations Preliminary Ruling Procedure Dr. J.J. Rijpma KOÇ UNIVERSITY Spring 2013

Part I: Enforcement Combination of remedies before national courts and ECJ EU’s judicial system is based on cooperation between Member States’ courts and the ECJ, a.k.a. “judicial dialogue” The preliminary ruling procedure is considered the “jewel in the crown” of the ECJ’s jurisdiction

(a) the interpretation of the Treaties; Article 267 TFEU The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;

Article 267 TFEU Ctd Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court. If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay.

Function Preliminary References “guarantee respect for the distribution of powers between the [EU] and its MS and between the [EU] institutions, the uniformity and consistency of [EU] law and to contribute to the harmonious development of the law within the Union”

Function Preliminary References Development EU law Judicial review EU institutions Preserving unity EU law Dispute resolution

1. Development EU law In 2011, there were 423 references for a preliminary ruling, out of a total of 688 new cases. References for a preliminary ruling therefore account for more than 60% of the Court’s caseload. Almost all significant rulings were answers to national courts Think about: direct effect, supremacy, general principles Courts sets out fundamental principles and limits and rules on legality of EU measures

2. Judicial Review of EU institutions Complementary to direct actions ( Art. 263(4) TFEU) However direct access to the General Court is very restrictive for individuals (tomorrow!) Preliminary ruling procedure therefore allows for a complete system of remedies: UPA - Preliminary reference cannot be made to challenge an EU act where parties had standing under Art. 263(4) TFEU: TDW

3. Preserving the Unity of EU Law Not just uniformity of application, but also of interpretative unity One Court with pre-eminent authority over the interpretation and validity of EU law

4. Dispute Resolution “necessary to enable it to give judgment” Court will only give an answer where there is an actual dispute: Foglia v. Novello Nr. 2 (para. 18)

1. Types of Provisions (a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union; + Provision of national law based on or making reference to EU law: Dzodzi (Joined Cases C-297/88 and C-197/89)

2. Courts + Tribunals that can refer “Courts and Tribunals” - Categorisation under national law not conclusive - Factors taken into account: - Established by law - Permanent - Compulsory jurisdiction - Procedure inter partes - Application of rules of law - Independence Important: national law cannot limit the power of lower courts to make pre-liminary rulings.

3. Courts + Tribunals that must refer “court or tribunal of a Member State against whose decisions there is no judicial remedy under national law” Abstract theory v. concrete theory

Development system of precedent Da Costa en Schaake NV “The authority of an interpretation under Article [267 TFEU] already given by the Court may deprive the obligation (to ask a question) of Its purpose and thus empty it of its substance”

Existence of a Question CILFIT para. 10: Irrelevant question para. 13/14: Acte eclairé para. 16: Acte clair

Act Clair doctrine: conditions Para. 16 correct application … so obvious as to leave no doubt as to the manner in which the question is raised is to be resolved Para. 17 characteristic feature of [EU] law and particular difficulties with interpretation Paras. 18/19/20 language versions / peculiar terminology / context / EC law as a whole / objectives / state of evolution

Act Clair doctrine Additional Safeguard: State liability for national Courts (C- 224/01, Köbler)

Validity of EU legislation Foto-Frost Para. 15 National courts do not have the power to declare acts of the [EU] institutions invalid Para. 17 Exclusive jurisdiction ECJ to declare void an act of an [EU] institution Para. 19 Application for interim measures (See also Factortame, Case C-213/89)

Control over jurisdiction “… whilst … an assessment of the need to obtain an answer to the questions of interpretation raised … is a matter for the national court it is nevertheless for the Court of Justice, in order to confirm its own jurisdiction, to examine, where necessary, the conditions in which the case had been referred to it by the national court.” (Foglia Nr. 2, para. 21)

Control over jurisdiction Questions of hypothetical nature Questions not relevant to the substance of dispute (facts/substance) Questions insufficiently clear for meaningful response Facts insufficiently clear for application of legal rules However only if issue of EU law is manifestly inapplicable or bears no relation to subject-matter of the dispute (e.g. ICI v.Colmer)

Problems Operation Art. 267 TFEU Delays In spite of the increase in that case load the Court has been able to reduce the average length of time taken for cases to be dealt with. E.g. in 2011 average time was 16.4 months; in 2003 it was still more than 25 months Steady increase of references from “new” MS More references expected in the AFSJ Time limits and workload affect negatively quality of rulings Increasingly expert nature of cases Unfamiliarity of national judges with the procedure

Tackling the problem Possible solutions that have been proposed: - Limiting national courts empowered to make reference Filtering mechanism (Cf. certain national constitutional courts) National court proposes answer Appellate System Tighter deadlines for MS, less translation

Tackling the problem Creation of decentralized judicial bodies (Art. 257 TFEU) CFI jurisdiction to give preliminary rulings (Art. 256(1) TFEU) Chamber System Office of the Vice-President Fast track procedures: - Expedited, f.k.a. accelerated (art. 105 RoP) - Urgent (art. 107 RoP) - New Rules of Procedure (in force since 1 November 2012)

Expedited Procedure Article 105 RoP: expedited procedure At request national court, decision of President, after hearing AG and Judge-Rapporteur Almost same rules, but tighter deadlines, AG only heard

Preliminary Ruling in the AFSJ If a question is raised in a case pending before a MS court or tribunal with regard to a person in custody, the ECJ shall act with the minimum of delay (Art. 267 TFEU).

Procédure Préjudicielle d‘Urgence (PPU) Art. 107 RoP - Special chamber (5 or 3 judges) Empowered to make a decision on the application of the emergency preliminary ruling procedure Duly justified request of a national court or, exceptionally, on own initiative Only parties, MS from which the reference originates, Com, EP & Council are informed Reference translated into working language only

Procédure Préjudicielle d‘Urgence (PPU) If decision on PPU is made, parties, MS from which reference originates and institutions allowed to submit written observations (subject to limitations) Only after expiry deadline for submissions reference and submissions are sent to other MS (in original language and working language ECJ) - All parties (including other MS) allowed to participate in the hearing, AG presents his view in closed session

QUESTION: What does it mean when we say the relationship between national courts and the ECJ has become more vertical and more multilateral?

Tomorrow: the review of legality j.j.rijpma@law.leidenuniv.nl