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Summary Introduction to International and EU law reporting problem 8
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Introduction to International and EU law reporting problem 8
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Introduction to International and European Union law reportingproblem 8
Learning objectives:
- How, based on what procedure, can private parties challenge an EU act through their
national courts?
- Are national courts allowed to nullify EU legislation?
Literature:
- Schutze, pp. 167-179.
- Case law: Foto Frost (Case 314/85), CILFIT (Case 283/81), Kobler
How, based on what procedure, can private parties challenge
an EU act through their national courts?
Preliminary rulings
When national courts encounter problems relating to the interpretation of European law, they
can referrer ‘preliminary questions’ to the European Court of Justice. These questions
precede (voorafgaan) the application of European law by the national court. The CJEU will
not decide the case. The CJEU is only indirectly involved in the judgement delivered by
national court. The procedure of preliminary rules is set out in Article 267 TFEU.
Preliminary rulings procedure constitutes the cornerstone of the Union’s judicial
federalism. This federalism is cooperative: EU courts and the national courts collaborate in
the adjudication of a single case.
The jurisdiction of the European Court
The European’s Court jurisdiction covers all Unions law including international agreements of
the Union. But the Court is not entitled, within the framework of Article 267 TFEU, to interpret
rules pertaining national law. Nor can it theoretically give a ruling on the compatibility of
national rules with Union law.
The Court may give preliminary rulings concerning:
1. The interpretation of Treaties (primary sources)
2. The validity and interpretation of acts of the institutions, bodies, offices or agencies of
the Union (secondary sources)
The application of European law is theoretically not within the power of the court. However,
the distinction between interpretation and application: The Court should only explain the rules
and leave the national court to apply these rules in a particular case. This should mean that
the Court of Justice cannot decide whether or not a national law violates EU law. In practice,
they often do so.
The legal nature of preliminary rulings
Preliminary references are not appeals, they are an optional act of national court asking for
interpretative help from the European Court. Once the CJEU has given a preliminary ruling,
this ruling will be binding. But for who will it be binding? Preliminary rulings can’t bind the
parties in the national dispute, because the CJEU will not decide on the case. The Court’s
ruling is addressed to the national court requesting reference and the Court has clarified that
, ‘that ruling is binding on the national court as to the interpretation of the Union provisions
and acts in question’.
Two views on whether interpretation is binding for that court or for all courts
1. Common law view: preliminary rulings are legal precedents that generally bind all
national courts. Judgements of the CJEU are binding erga omnes.
2. Constitutional view (civil law tradition): judgments do not create ‘new’ legal rules but
only clarify ‘old’ ones
The European Court thus adopts the declaration theory (civil law philosophy) and states
that judgments only declare pre-existing positive law and thus reach back in time when the
positive law was adopted. According to the Court its judgements are not generally biding.
They stated that its judgment are not sources but authoritative evidences of European law.
They give an interpretation of a provision and cannot fail to affect the legal position of all
those who may derive rights and obligation from that provision.
The problem is that preliminary rulings usually create retroactive effects. In Kühne & Heitz
the Court thus held that a new interpretation of EU law must be applied ‘even to legal
relationships which arose or were formed before the court gave its ruling on the question on
interpretation’. But the Court has limited the effect of the preliminary rulings to an affect ex
nunc: an effect from the time of the ruling.
Article 267(2) TFEU defines the competence of national courts to ask preliminary question.
This allows ‘any court or tribunal of a Member State’ to ask a European law question that ‘is
necessary to enable it to give judgment’
Article 267(3) TFEU imposes an obligation on certain courts: courts ‘against whose decision
there is no judicial remedy under national law’.
Who: national courts and tribunals
‘Court or tribunal’ in Article 267(3) TFEU refers to judicial authorities. The European Court
has decided what a national court or tribunal is: judicial authorities, no administrative
authorities. The wide definition is given in Dorsch Consult: The Court takes account into
account number of factors in order to determine whether a body making a reference is a
court or a tribunal:
- whether the body is established by law
- whether it is permanent
- whether its jurisdiction is compulsory
- whether its procedure is inter partes
- whether it applies rules of law
- whether it is independent Most important one has to be independent form the
State’s executive branch
Any national court or tribunal at any level of the national judicial hierarchy, and at any stage
of its judicial procedure, is entitled to refer a preliminary question to the European Court of
Justice. The highest court in a Member State for a given case is obliged to go to the Court in
case of lack of clarity. The lower authorities do not have an obligation to do, but they are free
to do so.
What: necessary questions
National courts are entitled to ask request a preliminary ruling, when there is a question on
which they consider it necessary for judgement to be given. In the past, the European Court
answered almost all questions, even if they were not correctly formulated.
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