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

2. 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

4. (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;

5. 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.

6. 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”

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

8. 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

9. 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

10. 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

11. 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)

12. 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)

13. 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.

14. 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

15. 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”

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

17. 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

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

19. 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)

20. 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)

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)

22. 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

23. 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

24. 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)

25. 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

26. 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).

27. 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

28. 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

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

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