National Courts:
Courts in the EU Legal Order (CJEU):
European Court of Justice (ECJ)
General Court
Civil Service Tribunal
Statistics (2019):
1905 new cases
1739 were completed
2500 were pending
Average wait was 14.4 months
Different Procedures:
Preliminary Reference (TFEU Art 267) – 64% of ECJ cases
Infringement Actions (TFEU Art 258) – 7.7% of ECJ cases
Appeal to direct action (TFEU Art 263) – 26% of ECJ cases
The Role of National Courts:
Citizens can enforce EU law against member states in domestic courts. Therefore, national courts are crucial actors in the enforcement of EU law against their own member states.
The principle of autonomy states that the way that EU law interacts with other legal orders (either national or international) is to be determined solely by EU law itself.
The Preliminary Reference Procedure (PRP):
When national courts are faced with an issue regarding the interpretation or application of EU law, they may refer this to the CJEU. The ECJ will answer the question as to the point of law, not the facts. Once the CJEU gives its ruling, national courts then apply this to the case. The ECJ is therefore not an appellate court.
Art 267 TFEU:
‘The Court of Justice of the European Union shall have jurisdiction to give preliminary references concerning:
(a) The interpretation of the Treaties;
(b) The validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;
Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision is necessary to enable it to give judgment, request the Court to give a ruling thereon.
Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.’
In practice, however, it is quite difficult to separate the interpretation of law from its application – they are intrinsically linked. Due to this, the CJEU often provides vague, perhaps sometimes unhelpful, rulings to avoid applying EU law and merely giving its interpretation.
EG: the UKSC sent 2 questions to the CJEU regarding VAT. The CJEU responded with broad / vague ideas, which meant the UKSC had to send another question, which was again met with a vague answer.
Competing Pressures:
From the EU’s perspective, PRP is the primary vehicle to ensure coherence in the development and enforcement of the EU legal order. Without the ability for the CJEU to intervene, EU law would be applied differently across different judiciaries in their member states, thus undermining integration.
‘there is no more essential broker of the EU's governance capacity than the national judge.’ [1]
From the side of national courts in member states, PRP has both opportunities (it gives increased power to lower courts over parliaments and governments) and costs (undermining of apex courts) for the national legal order. This incentivises lower courts to engage with PRP more readily, while higher courts are more reluctant (the ‘judicial empowerment thesis’). [2]
Keleman and Pavone note a maturation in the EU legal order whereby higher national courts have begun to engage with the ECJ more readily, slowly displacing lower national courts. [3]
‘first instance courts pioneered the use of the preliminary ruling procedure, but that appellate and peak courts subsequently overtook them.’ and ‘Our empirical findings debunk the notion that peak courts are referral-shy as outdated.’ [4]
Leijon's research shows how national courts contribute to striking a balance between integration and maintaining state autonomy. National courts are responsible for deciding what cases ought to be referred and how questions referred are framed. This allows them to suggest how they believe EU law should be interpreted. The CJEU, wanting PRP to continue to be engaged with more by these higher courts, may take the national court’s opinions into account when delivering a ruling, creating dialogue. [5]
Objectives:
Uniform development and enforcement of the EU legal order and its law. This makes the internal market work and allows EU law to evolve at the same rate. Without this mechanism, national courts could interpret EU law differently, leading to asymmetries.
Provides an additional avenue and safeguard to individual rights by requiring cases to be referred to the CJEU from apex courts. This justifies disrupting and undermining the procedural autonomy of member states' legal systems.
Who Can Refer to the CJEU (Choice):
Bodies which are established by law, permanent, have compulsory jurisdiction, acts inter partes (between parties), applies the rule of law, and is independent can refer cases to the CJEU. [6]
These requirements limit the scope of who can refer to the CJEU so as to not overwhelm the Court.
Public bodies whose decisions can be appealed in court can also refer.
EG: immigration adjudicators, professional disciplinary bodies, planning decisions etc.
Who Must Refer to the CJEU (Obligation):
Courts which have no further remedy or appellate level (supreme / apex courts) must refer.
‘The obligation … has its basis in the cooperation established, in order to ensure the proper application and uniform interpretation of [Union] law in all the Member States, between national courts, as courts responsible for applying [Union] law, and the Court. That obligation is in particular designed to prevent a body of national case-law that is not in accordance with the rules of [Union] law from coming into existence in any Member State. That objective is secured when … supreme courts are bound by this obligation to refer, as is any other national court or tribunal against whose decisions there is no judicial remedy under national law’. (LYCKESKOG)
Courts must refer questions regarding the validity of EU law to the CJEU. The CJEU has a monopoly on the judicial review of EU law.
[15]: ‘national courts do not have the power to declare acts of the [Union] institutions invalid (…) the main purpose of [Art. 267 TFEU] is to ensure that Union law is applied uniformly by national courts. That requirement of uniformity is particularly imperative when the validity of a Union act is in question. Divergences between courts in the Member States as to the validity of Union acts would be liable to place in jeopardy the very unity of the Union legal order and detract from the fundamental requirement of legal certainty.’ (FOTOFROST)
National courts must disregard any rule that prevents them from referring a case to the ECJ. [7]
‘The possibility for a lower court in any Member State to interact directly with the Court of Justice is vital to the uniform interpretation and the effective application of Community law’. [8]
State Intervention:
PRP allows lower national courts to circumvent and challenge the interpretation and precedent set by higher courts by referring cases to the ECJ instead of appealing to a higher level in the domestic judicial hierarchy. This upsets the domestic judicial hierarchy. Some states, such as Poland, have therefore attempted to limit the cases that can be referred to the ECJ.
(National) Exceptions to the Duty: [9]
Where the ECJ has already ruled on a very similar case, a court (including apex courts) does not have to refer to the ECJ (Acte eclairé). They can simply apply the ECJ’s previous ruling, just as they would previous precedent.
Where a national court is asking a purely hypothetical question, a court does not have to refer to the ECJ, nor does the ECJ have to respond if it does choose for the question to be referred.
‘[Q]uestions relating to EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it.’ (AMEX v HMT)
In WIGHTMAN, a question of whether Art 50 TEU can be revoked once sent. The UK Government argued that, since they did not intend on revoking Art 50 TEU, the question was entirely fictitious and hypothetical, so should be answered by CJEU.
The ECJ focus on the revocability being a ‘genuine question’ as to the correct interpretation of EU law, rather than focusing on the genuine nature of the dispute and the real-life implications of the ruling.
Where it is ‘so obvious that [there is] no reasonable doubt … for other courts or the ECJ’ as to the interpretation of EU law, the national court can just interpret the law (Acte clair).
Things to Take into Account to Find if there is ‘Reasonable Doubt’:
Interpretation in light of the demands of the EU legal order.
Comparisons between language versions of previous CJEU rulings.
EU-specific terminology (compared with national interpretations).
Internal inconsistencies are a strong indication of the risk of different interpretations, but are not determinative. (FERREIRA DA SILVA E BRITO)
Problem:
This exception can be open to abuse, since it may allow (apex) national courts to use their discretion to refuse to send cases to the ECJ. This may be done to pursue some other national interest.
Looking at the French Conseil d’Etat, Fenger and Broberg found that the court used acte clair 191 times, but references to CJEU only 18 times. [10] This was usually to improve the outcomes for the parties, expedite the case along and improve certainty.
Proposed Reform: [11]
It has been argued that finding a true acte clair is as likely as finding a unicorn. This is practically unfeasible and conceptually illogical because, by setting exceptions to when national courts do not have to refer to the ECJ, it is requiring them to find this non-existent unicorn.
Bobek argues that national courts should have discretion to reduce the workload of the CJEU; the EU legal order has matured to a degree that national courts can be trusted. [12]
Bobek suggests that, alternatively, the PRP should only be used where there is a general issue relating to the interpretation of EU law and there are objectively more than one interpretation.
The Court was not persuaded and only made minor tweaks, one of which is putting courts under a duty to give reasons when they use one of the CILFIT exceptions. This stance is particularly relevant in light of the rule of law backsliding experienced in certain EU member states.
‘the decision in Consorzio suggests CJEU is conscious of the limits to the CILFIT doctrine’. [13]
National courts are ‘now subject to the clear risk of appearing categorical, political, and unsupported by solid reasoning in their refusal decisions.’ [14]
Policing the Duty to Refer:
State liability for a ‘manifest infringement of duty to refer’. (KOBLER)
Infringement action for a lack of referral. (C v FRANCE)
“[The Court] declares that, since the Conseil d’État failed to make a reference to the Court of Justice of the European Union, in accordance with the procedure provided for in the third paragraph of Article 267 TFEU, in order to determine [tax question] even though its interpretation of the provisions of EU law in the judgments of Rhodia and Accor was not so obvious as to leave no scope for doubt, the French Republic failed to fulfil its obligations under the third paragraph of Article 267 TFEU’. (C v FRANCE)
Proposed Reform:
There have been proposals for a Unified Patent Court that would be decentralised but have supranational courts for appeals.
There is also a focus shift away from sending all cases to the ECJ to be decided. Alternatively, national courts could interpret EU law and the CJEU could simply green-light this where appropriate. It is worth noting that, in practice, this already exists to some extent – the way that national courts, especially apex courts, frame and word their questions already influences the judgements delivered by the CJEU. [15]
The introduction of an electronic database that records the judgements on EU law given in national courts could be used to establish whether or not they are being interpreted uniformly. If not, the CJEU could intervene in these situations.
Increasing the legitimacy of CJEU decisions may also be required. CJEU rulings currently cannot be appealed. Creating an appellate court may improve the EU legal order's perceived legitimacy.
Resources:
References:
[1] Pavone & Keleman, ‘The Evolving Judicial Politics of European Integration: The European Court of Justice and national courts revisited’ (2019) ELJ [2] See Weiler, ‘The Transformation of Europe’ (1991) 100 Yale Law Journal 2403; Burley and Mattli, ‘Europe Before the Court’ (1993) 47 International Organization 41; Weiler, ‘A Quiet Revolution’ (1994) 26 Comparative Political Studies 510; Alter, ‘The European Court's Political Power’ (1996) 19 West European Politics 452 [3] Pavone & Keleman, ‘The Evolving Judicial Politics of European Integration: The European Court of Justice and national courts revisited’ (2019) ELJ [4] Dyevra, Glavina & Atanasova, ‘Who refers most? Institutional Incentives and Judicial Participation in the Preliminary Reference Procedure’ (2020) JEPP 912 [5] Leijon, ‘National courts and preliminary references: supporting legal integration, protecting national autonomy or balancing conflicting demands? (2021) 44 West European Politics 510 [6] Case C-53/03 Syfait [7] Case C-416/10 Krizan [8] Case C-210/06 Cartesio (AG Maduro) [9] Case C-283/81 CILFIT v Ministry of Health [10] Fenger & Broberg 2013 [11] Case C-561/19 Consorzio Italian Management (AG Bobek) [12] Cf. Poland and Hungary [13] Gentile & Bonelli, ‘La jurisprudence des petits pas’ (2021) REALaw [14] Gentile & Bonelli, ‘La jurisprudence des petits pas’ (2021) REALaw [15] See Leijon, ‘National courts and preliminary references: supporting legal integration, protecting national autonomy or balancing conflicting demands? (2021) 44 West European Politics 510
Cases Mentioned:
Case C-99/00 Lyckeskog
Case C-314/85 Fotofrost
Case C‑304/16 Amex v HMT
Case C-261/18, Wightman
Case C-160/14 Ferreira da Silva e Brito
Case C-224/01 Kobler
Case C-416/17 Commission v France
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