Article 267 Reference

Article 267 TFEU allows the national courts to make a reference to the European Court of Justice on matters of EU law that are unclear. The ECJ is not an appeals court and will not judge the whole case. They will only answer the questions on EU law that the national court askes. Due to EU law being Supreme (Costa v ENEL), it is important for the national courts to interpret law properly to prevent injustices.

The purpose of this Article is to give authoritative rulings to interpret and validate all EU law, create uniformity across all 28 member states in regard to EU law, give equality to all EU citizens, and keep national bodies and courts in line so they no longer just rule from a system of precedent, they take into consideration the rights given under EU law.

The EU produces a lot of legislation each year, from directives, regulations, case law ect. They then must apply this all equally to all 28-member states and therefore it is a big task. It would be easy to get overwhelmed with the amount of cases that get referred without putting in place the criteria to be able to make a reference. As it is, for general proceedings, in 2016 it took 14.7 months to receive their reference. Therefore, a reference can only be made if:

  1. The body making a reference is a court of tribunal
  2. The decision is necessary
  3. Must make a reference if it is a court of mandatory jurisdiction.

Courts of Permissive jurisdiction can make references if they feel it is necessary.


Is the body a Court or Tribunal?

The case of Dorsch Consult produced some criteria in which the body would be a court or tribunal:

  1. The body is established by law
  2. It is permanent
  3. The jurisdiction is compulsory
  4. It is ‘inter partes’ meaning that each side gets to argue their side. It will be X v Y.
  5. It is independent
  6. It applies rules of law

The case of ‘Nordsee’ identified that Arbitrators are not a court or tribunal. They are not prescribed by law usually and their jurisdiction is not compulsory.

The case of Brockmeulen decided that an organisation can still be a court or tribunal without some of those criteria. In this case there was minor governmental involvement in its creation. The ECJ ruled that it was more important that an organisation which grants appeals which may affect the rights of those under EU law, than being completely independent. Therefore, not only can we see some government organisation is allowed, it is also down to the ECJ whether they allow the question of EU law posed to them depending on the importance of the matter and what should be done (applying a purposive approach).


Is the decision necessary?

When asking whether it is necessary, it is important to look at the CILFIT criteria. This was derived from the case of CILFIT v Ministry of Health:

  1. Cant refer if it the question has no relevance to the outcome
  2. Cant refer if it has already been interpreted
  3. If the law is so clear that it devoid from any misunderstanding.

The case of ‘Da Costa’ clarified that if there was a genuine chance that the decision would have changed (backed up with evidence or change in law) then it is possible to make a reference for a matter that was already decided.

Costa v ENEL clarified that the EU will not make any rulings on the validity of national law. It is not the job of the ECJ to repeal national legislation, or invalidate it, it’s only job it’s to interpret the EU law.

The case of ‘Foglia No1’ identified that the ECJ will not rule on matters where there is no dispute. In this case, both parties did not want the French tax imposed, and therefore the ECJ refused to comment.

The Case of ‘Foglia No2’ usefully identified that the ECJ will not make rulings on hypothetical questions either. They have to be case relevant.

‘Circostel’ also shows that the ECJ may refuse to make a judgement on a case if all the information is not supplied or not clear. It was made clear that the job of the ECJ was not to find out the facts of the case, it was only to interpret the EU law in line with the facts of the case.


Courts of Mandatory Jurisdiction

This principle is governed by Article 267(3), A court of mandatory jurisdiction is a court where there is no further appeals possible for this claim. They are under an obligation to make the claim because it may create an injustice and no way of appealing if this decision is wrong.

Once again, the case of Costa v ENEL shows that a court of mandatory jurisdiction does not have to be the highest court in the land. In this case a mandatory court of jurisdiction was deemed to be the Italian Magistrates court itself because the amount of money that was being claimed for was too small to warrant an appeal.

The question as to what happens if the court of mandatory jurisdiction doesn’t make a reference, what happens? The case of ‘Kobler’ identified that if they fail to make a claim, granted that the breach is sufficiently serious and the infringement if ‘Manifest’, a claim under state liability will be available.


Courts of Permissive Jurisdiction

There has been much debate of whether the courts of permissive jurisdiction could and should make references to the ECJ. Article 267(2) allows the lower courts to make a reference.

The case of Fotofrost stated that if there is any unclarity in the EU law they should make a reference.

The case of Rhine Mulen ruled that lower courts can make a reference even if there is precedent that they are bound to follow created by higher courts.


In regard to the UK:

The case of ‘R v Ex P Else’ gave a wide interpretation of this law and said that if there is debate over a point of EU law, then it should be referred. However, if the law is clear or undisputed, then the court (whichever court they are) should proceed with absolute confidence. This means that there was an increasing number of references to the ECJ on small matters that were creating more work for the ECJ, many of which were being refused, which only increases the case time within the National court system too.

However, the case of ‘Trinity Mirror’ narrowed this approach and clarified that a reference should only be made if it is of general importance, and the ruling is likely to promote uniformity throughout the EU. This may be argued to be too narrow.


Bound by the ECJ

Article 4(3) of the TEU state that the National Courts must follow the directions of the ECJ in that and all subsequent cases, which is also backed up and clarified in Article 3 ECA.

The ECJ can also apply decisions retrospectively, despite some arguing that it is contrary to the Rule of Law. In the case of ‘Defferene’, a sex discrimination case, the claimant was allowed to claim back all compensation from past discrimination against her.


Why is there no Direct Access to the ECJ?

It is debated widely as to whether the ECJ should become an appellant court, however there are certain reasons this hasn’t happened yet.

  1. Floodgates- if the ECJ were to become an appellant court, they would have to potentially hear cases from 28 member states. In its current position, the ECJ would quickly become overwhelmed and cease to act because of such a heavy case load. Therefore, there would need to be a new EU judicial system put in place before this were to happen.
  2. EU law is supreme. Comparing this against the European Court of Human Rights, which is not supreme. If there is any conflict in ECHR law and National law, a section 4 declaration of incompatibility is made by the courts. However, the law is not changed. If the legislature/ government decides to change the law, they will. However, this is not always the case for example prisoners voting rights in the UK. Therefore, there is more ambiguity and more discretion for the courts to exercise over ECHR law. There is not so much under EU law and therefore there is little need for an appellant court because of its nature.
  3. Article 267 is in place and there is no need for it to be an appellant court. The court systems of the member states have proved thus for to be sufficient, and therefore by adding EU law on, there only needs to be a binding body to interpret that law, not adjudicate on it.

There are more arguments, I have set out the main ones.


By Woodrow Cox

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