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Exam Notes for Law of European Union
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EU Law – Week 6 – Preliminary Reference Procedure(ESSAY QUESTION)
- What is Art. 267 TFEU About?
> action in national court – (there must be an action in national court)
~ e.g., an individual acts against a state/another individual to enforce their EU
rights
~ one of the parties rely on EU law –
but EU law in unclear or the other
party argues that EU law is invalid
> (supremacy of EU law and direct
effect was established from this when
national courts were unable to
interpret EU law)
> Art. 267 allows (and in some cases
requires) national courts to ask
questions to the CJEU
~ it acts as a bridge between national courts and CJEU – (relationship
between CJEU and national courts – is one more supreme than the other)
> ‘The Court of Justice of the European Union shall have jurisdiction to give
preliminary rulings 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 on the question
is necessary to enable it to give judgment, request the Court to give a ruling
thereon…’
- What is a Preliminary Ruling?
> when the decision is NOT made yet
> the preliminary reference procedure allows national courts to ask questions
to the EU court of Justice
~ (does this make CJEU supreme – who are the guardians of EU law = CJEU
– therefore, asking questions CJEU questions regarding EU seems
understandable)
> from the outset, it is important to note that the ECJ is not a court of appeal –
it is not in any hierarchical sense “superior” to the national courts – the Treaty
clearly indicates that the EU courts are equal to the national courts
~ (appeal comes after the decision is made – in this case they ask for
interpretation BEFORE the decision is made)
~ (why are they not equal?) – CRITICAL ANALYSIS
> it is a long article that can be difficult to understand and deconstruct – Art.
267 TFEU:
1. What is the purpose of preliminary references?
2. What is a court or tribunal under the preliminary reference procedure?
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