EU Law Preliminary Functions

EU Law Preliminary Functions

 Development of EU law (direct effect, supremacy)

 Maintenance of institutional balance

 Enhancement of individuals’ interests (obl. to refer for court against whose decision there’s no nat. remedy)

 Legal integration – uniformity/consistency of EU law

 ECJ: “veritable cornerstone of the operation of internal market” – plays a fundamental role in ensuring

Treaty law retains its Comm. Character w/a view to guaranteeing EC law has same effect in all MS.

Types of questions referred – Asked by Notary public London firm

(i) Treaty interpretation (Art 267 (1)(a))

– used to make judgments on supremacy & DE

– ECJ merely interprets Treaty – no judgment on nat. law validity

– If incompatibility found, obl. on nat. court to redress situation

(ii) Validity & interpretation of EU institutions, bodies etc. acts (Art 267(1)(b))

 Chalmers: 2 striking features

a) nat. courts monopoly over disputes involving points of EU law to be decided on nat. law, facts &

application of EU law

b) Nat. courts act as gatekeepers to ECJ – no direct right of access to private parties

 ECJ: 3 stages of EU legal order

(i) EU is autonomous legal order

(ii) Requiring MS courts to interpret EU law uniformly

(iii) By providing for direct relation b/w MS courts and ECJ, Art 267 enables this uniformity

Who can refer

(1) Body or tribunal – determined by ECJ on the basis of broad definition: factors

a. established by law

b. compulsory jurisdiction

c. decisions of judicial, not admin, nature

d. independence

i. external – no intervention/pressure liable to jeopardise judgment

ii. internal – impartiality

 Complex application

 Ref can be made only if there’s a pending case b/f nat. court which leads to decision of judicial nature

o Cartesio – ref couldn’t be made b/c court was discharging admin function which didn’t resolve dispute

 In the interest of uniformity, ECJ can rule on issues of validity & interpretation arising out of procedure

of bodies to which govt. has assigned some adjudicatory function

o Broekmeulen– Dutch Appeals Comm. hearing appeals from a body resp. for admission of docs

 Chalmers: rationale: any body deciding on EU law rights should be able to refer – if not, Cs would have to

challenge through another body, adding to expense & delay, dis-incentivising parties from referral but could

open floodgates whereby undertrained actors would overload the court.

 AG Colomer: definition is too wide; the strategy behind 267 was to create a conversation b/w ECJ & nat.

courts – independent parts of executive not intended to be part of it. Practical consequence: allows bodies

w/no legal training to formulate ref + admin actors have a chance to disrupt domestic judicial hierarchy and

system of precedent by referring something they disagree with

(2) With discretion/ obligation to refer

 Art 267(2) – discretion (any court or tribunal)

 Art 267(3) – court/tr. against whose decision there’s no remedy in nat. law(unless CILFIT satisfied/issue

previously decided)

 What bodies are covered?

a. abstract theory – bodies whose decisions are never subject to appeal

EU LawPreliminary Reference Short

b. concrete theory – bodies whose decisions aren’t subject to appeal in that case (Costa v ENEL)

o Costa v ENEL – magistrate, whose decisions were normally subject to appeal, could refer to ECJ b/c in

that case sum of money too low for appeal to be made in nat. law.

 somewhat distorting to nat. judicial hierarchy – lower court can refer even in the face of

decision by a higher court …

≥ NB: nat. court not obliged to raise matters of EU law on own volition but it can’t be prevented from doing so

by a rule of national law

≥ NB: no obl. for nat. court/tr. to refer just b/c parties ask for it