Part XI – Preliminary procedures Ch. 1 – Art. 267 TFEU: overview and main dichotomy  Relationship between national courts and the CJ at the core of the procedure Unlike the US, the EU did not develop an extensive system of federal courts designed to apply EU law; yet all national courts must apply EU law in settling internal disputes on the basis of a system of cooperative federalism where national courts and the CJ collaborate in the adjudication of a single case Major changes brought by this procedure, amongst which direct effect and supremacy Preliminary: questions posed by national courts to the CJ that precede the final application of EU law by them The CJ does not decide directly the case: indirect actions and rulings CJ and not the GC But Art. 256.3 TFEU  Dichotomy Interpretation of the Treaty: not of national law Validity and interpretation of acts (binding and non binding)

Part XI – Preliminary procedures Ch. 2 – Notion of court and tribunal Courts or tribunals: same meaning but terms not always employed in all MS Up to the CJ to decide who falls under the notion Body established by law? Is it permanent? Is its jurisdiction compulsory? Does it apply the rules of law? Is it independent? Examples Arbitration Constitutional courts Bar Council Administrative authorities International courts and tribunals

In both cases ex officio or upon the request of a party Part XI – Preliminary procedures Ch. 3 – Discretion or obligation to refer? Discretion Obligation To prevent the establishing of a national case law inconsistent with EU law In both cases ex officio or upon the request of a party When national judges (of last instance and not) do not have to refer the matter before the CJ? Decision of the CJ not necessary to settle the case The CJ has already ruled on the same matter (not the same facts): it is for the national court to apply the prior ruling (but in reality not); the creation of a precedent alike system increases and fosters the CJ’s powers No doubt about the interpretation/validity of the EU measure: acte clair

Part XI – Preliminary procedures Ch. 4 – Role and powers of the CJ Costa and for the following decade Power to correct improperly framed references Afterwards CJ ultimate authority to accept or not the request coming from national judges…it may also decline to give rulings if: hypothetical cases – waste of time + risky for the coherence of the judgments and the clearness of its implications question raised not relevant for the resolution of the dispute questions not sufficiently clearly raised and elaborated facts not sufficiently clear

Part XI – Preliminary procedures Ch. 5 – Nature of the rulings Validity Interpretation but not application, which should remain a matter for national courts The boundaries between interpretation and application are weak The more the interpretation is precise and detailed the more interpretation tends to overlap with application The more it is detailed the more national courts merely execute the decision In reality the CJ has often assessed whether national laws violated EU law although it should not do so Sunday trading saga, decentralization and then centralization of the proportionality principle…crossed the line between interpretation and application The CJ decides whether to apply the expedited procedure and urgent procedure in accordance with Art. 23a of the Statute when the nature of the case and exceptional circumstances require it to be handled quickly Only within AFSJ

National courts must stay the proceedings Part XI – Preliminary procedures Ch. 6 – Legal status and effects of preliminary rulings Binding effects on the national judge who referred the matter otherwise application of Art. 258 TFEU Interpretation: erga omnes effect, should there be the same point of law but facts and national procedures would be different? Yes. Why? Need for uniformity Ex tunc effects with the exception of the relevant economic effects produced by the judgment in cases where the legal situations were created in bona fide in compliance with national law which was considered until that moment in compliance with EU law Validity: if it is declared, possibility for other reasons to ask for a preliminary ruling; if invalidity it happens like in respect to Art. 263 TFEU: erga omnes In case of a declaration of invalidity, all instruments adopted based on it are invalid and EU institutions must rectify the law National courts must stay the proceedings

Principal way to challenge EU law provisions Part XII – Art. 263 TFEU Annulment proceedings (review of legality) Ch. 1 – Nature of the acts and standing Principal way to challenge EU law provisions Amended with Lisbon to ensure greater effectiveness of EU law, especially as far as individuals are concerned Indirect hypothesis for individuals: art. 267 TFEU CJ and GC Nature of bodies whose acts are subject to review Nature of applicants (privileged, quasi privileged and non privileged applicants)  

Part XII – Art. 263 TFEU Annulment proceedings (review of legality) Ch. 2 – Legal grounds Lack of competence Infringement of an essential procedural requirement (right to be heard, consultation and participation, duty to give reasons) Infringement of the treaty or any rule of law relating to its application (proportionality, non discrimination, transparency) Misuse of power (adoption by an EU institution of a measure with the exclusive or main aim of achieving an end other than that stated)

void means ex tunc and erga omnes Part XII – Art. 263 TFEU Annulment proceedings (review of legality) Ch. 3 – Consequences of illegality Art. 264 TFEU void means ex tunc and erga omnes Art. 266 TFEU: eradicating the effects that were produced

Part XII – Art. 263 TFEU Annulment proceedings (review of legality) Ch. 4 – Non privileged applicants A natural or legal person can bring an action in three types of cases The addressee of a decision can challenge it before the CJ or the GC (act addressed to him/her) An act can be challenged when it is of direct and individual concern to the natural or legal person or persons (not being addressed at a specific individual): not only decisions but also provisions in regulations and directives A regulatory act can be challenged if the claimant proves that it had a direct (not individual) concern What is the meaning of ‘regulatory’? Legislative acts or not? Individual rights or democracy? Direct concern A measure is of direct concern where it directly affects the legal situation of the applicant and leaves no discretion to the addressees of the measure who are entrusted with its implementation There must be a direct link between the act of the EU institution and the damage inflicted on the applicant The interest safeguarded must be a legal entitlement rather than any other form of interest Individual concern Plaumann: the effects must be peculiar to the applicant(s) as differentiated from all other persons Very strict test: anybody who is part of an open group of persons