Preliminary Reference Procedure Essay

Preliminary Reference Procedure Essay-3
TUTORIAL 3: THE RELATIONSHIP BETWEEN EC LAW AND NATIONAL LAW: PRELIMINARY REFERENCES; DIRECT EFFECT, INDIRECT EFFECT AND INCIDENTAL EFFECT 1.Preliminary References on the Interpretation of Community law and the validity of Community acts Craig & de Burca Ch. 234 EC: (1) 'The Court of Justice shall have jurisdiction to give preliminary rulings concerning: (a)the interpretation of this Treaty; (b) the validity and interpretation of acts of the institutions of the Community and of the ECB; (c) the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide.ICC case 66/80 confirms that rulings of the ECJ, although addressed to a specific court, should be used by other national courts and relied on (rather than make reference) when the issue arises.

TUTORIAL 3: THE RELATIONSHIP BETWEEN EC LAW AND NATIONAL LAW: PRELIMINARY REFERENCES; DIRECT EFFECT, INDIRECT EFFECT AND INCIDENTAL EFFECT 1.Preliminary References on the Interpretation of Community law and the validity of Community acts Craig & de Burca Ch. 234 EC: (1) 'The Court of Justice shall have jurisdiction to give preliminary rulings concerning: (a)the interpretation of this Treaty; (b) the validity and interpretation of acts of the institutions of the Community and of the ECB; (c) the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide.ICC case 66/80 confirms that rulings of the ECJ, although addressed to a specific court, should be used by other national courts and relied on (rather than make reference) when the issue arises.

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Original conception of relationship between ECJ and national courts was a 'horizontal' (i.e.

they are separate but equal, performing different functions) and 'bilateral' (i.e.

The CJEU specified the exceptions to this obligation in . However, it exerts its review on decisions of administrative bodies that may be regarded as court of last instance within the meaning of Article 267(3) TFEU. I–03169; Case C–402/98, ATB and Others, 2000 I–05501, para. In other words, an individual, who believes that an ordinary court has violated its duty to refer to the CJEU under Article 267(3) TFEU, can challenge such a decision before the Federal Constitutional Court, by claiming a violation of the constitutional right to a lawful judge within the limits of Article 101, section 1, sentence 2 of the Basic Law., Bundesverfassungsgericht [BVerf G] [Federal Constitutional Court], Jan. Consequently, the refusal to refer violated the protection of the fundamental rights of individuals, which the CJEU would have taken into account in its preliminary ruling. It is noteworthy that in the judgment Vf Slg U 466/11 (Vf GH, March 2012, Case No. How can national judges be sure that other national judges in another Member State will follow the same view?

Pursuant to Article 267(3) TFEU, national courts of last instance, namely courts or tribunals against whose decisions there is no judicial remedy under national law, are required to refer to the CJEU for a preliminary question related to the interpretation of the Treaties or the validity and interpretation of acts of European Union (EU) institutions. The review by the Austrian Constitutional Court is confined to administrative decisions and this excludes the judgments of administrative or ordinary courts. In this context, the role of the preliminary reference procedure to the CJEU is particularly interesting. Report of the Constitutional Court of the Federal Republic of Germany According to Article 92 of the Federal Constitutional Act, the reasons for the complaint shall specify the right which is claimed to have been violated, and the act or omission of the organ or authority by which the complainant claims to have been harmed. In particular, the Federal Constitutional Court stated that the right to a lawful judge was violated as the national court of last instance interpreted EU legislation in contrast to EU fundamental rights.

It is for the ECJ to decide whether a body is a court or tribunal and hence whether the ECJ may answer the reference questions.

This presents difficulties for things like arbitration panels.By contrast Arnull argues that the conditions for acte clair finding were really quite loose and that the English courts have used the doctrine to escape referring questions to the EC.There are two criteria needed to make a reference to the ECJ: The reference must be made by a court or tribunal (though the court can make a reference by its own motion rather than by that of the parties-see CILFIT); and reference must be necessary to enable the court or tribunal to give judgment.This theory was impliedly endorsed in Da Costa v ENEL and affirmed in Lyckskog C-99/100 It is for the national courts to decide if art. However if the question of law has already been answered by the court then the ECJ may just restate the substance of a former case (Da Costa).In CILFIT the ECJ held that the existence of a ruling on the question raised absolved a * * * * * * court of the requirement to refer to the ECJ under 234(3).The ECJ has furthermore been wary of the objection that to answer a reference would be to apply rather than interpret the relevant law.In fact the ECJ is usually willing to give v detailed answers e.g. Problem of current system is that courts are overloaded with cases and this delays justice (especially answer of national court while waiting for a reference).This is an extract of our The Relationship Between Ec Law And National Law Preliminary References, Direct Effect.Indirect Effect And Inccidental Effect document, which we sell as part of our European Law Notes collection written by the top tier of Oxford students.The duty in 234(3) is to ensure that EC law is applied consistently and prevent the adoption of national law that is inconsistent with that of member states.There are two theories about which bodies this duty covers: o Abstract Theory: Only bodies whose decisions are never subject to appeal o Concrete Theory: Any body whose decision is not subject to appeal in the particular case in question.

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