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Preliminary Rulings Procedure- Spirit of Cooperation (Requirement of a…
Preliminary Rulings Procedure- Spirit of Cooperation
Under
Art 267 TFEU
, CJEU has jurisdiction to give prelim rulings on the interpretation of treaty O.L. and the validity and interpretation of acts or the institution, bodies, offices or agencies of the Union
Role of the CJEU
to interpret the question only and not to involve itself in the application of the answer
Arsenal Football Club v Reed [2001]2 CMLR 23,Case 175/78 La Reine v Vera Ann Saunders [1979] ECR 1129 (for exam)
Role of the National Court
is to apply the answer
Requirement of a question
Must be necessary for NC to make judgment, Salgoil SA v Italian Minister of Foreign Trade {1968] ECR 453
Must not be hypothetical, Case 104/ 79 Foglia v Novello (1) [1980] ECR 745, Case C-83/91 Meilicke v ADV [1992] ECR I-4871
CJEU can select the questions to answer, Case 6/64 Costa v ENEL [1964] ECR 585
CJEU cannot rewrite the question
Refering case must be active
Must be proceeduraly relevant Cases C-403/08 and C-429/08 FA Premier League v QC Leisure and others
Dispute must have occurred after accession, Case 302/04 Ynos [2006] ECR I-371
Who can make a ref to the CJEU?
Court,
Case 175/78 La Reine v Vera Ann Saunders [1979] ECR 1129
or Tribunal
, Case 61/61 Vaassen [1965] ECR 261
Who cannot?
Private arbitrator (Case 102/81 Nordsee [1982] ECR 1095)
Director of Taxation (Case C-24/92 Corbiau [1993] ECR I-1277)
Swedish Revenue Board (Case C-134/97 Victoria Film [1998] ECR I-7023)
Paris Bar Council (Case 138/80 Borker [1980] ECR 1975)
When Should A Reference Be Made?
Art 267(2) TFEU
• Lower Courts – MS courts have a discretion to make a reference. As there is still an opportunity for an appeal there is room for misinterpretation.
May make a reference
.
Art 267(3) TFEU
•Courts of last instance – where the decision is final MS courts are under a duty to make a reference if the answer to a question of Community law is necessary in order to give judgment.
Shall make a reference
.
Concrete Theory
on Court of last instance- Where there is no opportunity for appeal