people have v little contact with ECJ. People enforce right sin national courts
national courts refer issues to ECJ on how to interpret law. This is called article 267 reference.
answer is caused a preliminary ruling – it comes before end of case
national courts then apply it
this procedure is limited. ECJ cannot compel court to make a reference
petitioner can seek a state liability if a reference is not made. As in Cogler in relation to an Austrian court.
It is hard to prove that this is a sufficiently grave breach
only a court or tribunal can make a reference
one can only make a reference is necessary
the court can be obliged to make a reference or not if the thing is mandatory
ECJ may reject a reference
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how can we decide if something is a court or tribunal?
Dorsch consult 1997 – criteria for a court set out
there was a supervisory board
broekmuelen related to a
appeals committee of the dutch medical profession (that was established as a court or tribunal_)
Nordsee case – the body was found not to be a court or tribunal
whether the body is established by law.
does it have backing and legal framework – that makes it a court
is it permanent?
ministerial appointees been there for a long time
is jurisdiction compulsory?
broekmuelen – decisions were binding not subject to appeal in an ordinary court
Nordsee – arbitrator ‘s ruling was not binding.
a voluntary ruling is not a court
if people do not have to go there it is not a court – decisions not binding/
are all the parties present and heard as in broekmuelen
does the body apply law?
is it independent? In broekmuelen the decision was binding. iN broekmuelen it was independent.
Dorsch consult
federal supervisory board was a court or tribunal
Not all six factors have to be met for it to be a court or tribunal\
no clear guide on what makes a reference necessary
where will article 267 not be necessary – if reference is not relevant to tribunal;
CILFIT case – where reference is not necessary
second if ECJ Has already been dealt with this issue
if issue is so blatant – acte claire
established in costa case. no reference is needed if the national court considers law is free from doubt
criteria for sending article 267 reference
mandatory court – highest one whose decision cannot be appealed
permissive court is anything else – i.e. its decisions can be overturned
courts are not required to make reference
whether they do or not should be determined by certain reference
ECJ information note – send a case if the facts are novel
- new interpretation may need a reference
- – if you are doubtful about validity of EU law then send a refernece. No national court can declare EU law invalid
- Irish Creamery – in this case a court of first instance made a ruling
Lord Bingham was v pro ECJ reference since ECJ are experts on EU law. As he said in International Stock Exchange case.
court of appeal said the courts should not send too many refernec ebecause ECJ would be swamped.
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