Samenvatting
Summary Schema/SV ECL session 6
Schema/beknopte samenvatting t.b.v. tentamen
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Voorbeeld van de inhoud
SCHEME EUROPEAN CRIMINAL LAW SESSION 6 ECL in practice (1): implementation and preliminary rulings
Literature
- Andre Klip p. 133-172, 243-246, 302-306
- Case law: Ullens de Schooten and Rezabek v Belgium
- Legislation:
o Recommendations to national courts and tribunals in relation to the initiation of preliminary
ruling proceedings
o Directive 2012/29 establishing minimum standards on the rights, support & protection of
victims
o Directive 2010/64
o Directive 2012/13
o Directive 2013/48
o Directive 2016/800
o Directive 2016/343
o Directive 2016/1919
HOW TO RULE ON A QUESTION? PRELIMINARY RULING. HOW DOES THE COURT ASSESS?
1. Look at the question: is this clear enough? Is the question okay? The court starts with
reformulating the question (not always).
2. Is it within the jurisdiction of the Court?
3. Look at the Directive: does the case falls
within the scope? Recitals & objectives.
4. Interpretation of the articles
applicable/referred to; it is necessary to
consider…
5. “In other words”: interpreting those articles.
6. Legal basis: min standards in procedural law.
7. Refer to the Preambule: meaning/purpose of
Directive
8. Case law of ECHR
Look at the wording of the articles: “shall” could be an obligation. “May be taken into
consideration” an option. “May” discretion. The court can always interpret those wording.
PRELIMINARY RULINGS
National judge asks question regarding validity and/or interpretation of EU law
, Procedure is “keystone of the EU judicial system” and sets up “a dialogue between one court and
another”.
The dialogue is a shared responsibility. Both actors (Court of Justice & national court) have an
interest to make this dialogue as successful as possible. That means that as a national court, you
must supply all information necessary for the court of justice to help the national court. As simple as
that sounds, it sounds so obvious but it is very difficult. -> shared responsibility to make it a
successful cooperation.
- National court must help the court to help him
- The court must give the national court useful answer to question asked and at the same time
also help other national courts. The Court of Justice has a different position. The Court is
talking to all judging in EU! Because the answer is relevant/will affect other courts/matters.
Sometimes the Court reformulate the question referred by the national court
(reformulation) to get a better answer/solution across the other judges/courts.
National courts have the widest discretion in referring matters to the Court and are free to exercise
that discretion at whatever stage of the national proceedings (Ognyanov). Who is obliged to ask
question? The highest courts. When?
1) If they have doubts about the interpretation of EU law and
2) If the answer to the question asked, is relevant/necessary in order to solve the national
dispute.
Lower courts are competent to refer but not obliged, while the highest court are obliged if there is
any doubt (CILFIT). To eliminate all possible doubt, the court must compare all language versions
with each other and must be satisfied that all other judicial bodies in the EU hold exactly the same
view.
BUT: main focus of attention: seems now to be the subjective perception of the highest court itself
(Van Dijk). If the Highest Court thinks something is acte clear, but a lower court thinks it is different,
the Highest Court asked a question to the Court of justice; is it still acte clear then? The Court said
yes but some didn’t agreed to this decision.
Exception to the general rule = CILFIT.
1. Competence of the Court (art 267 + 276 TFEU)
*Task? Ensure the uniform interpretation of UL, so the Court can be called upon to explain what its jurisdiction
is and what the effects of its judgments are.
*How?
1. A case brought against a MS by the Commission for its failure to respect obligations under the Treaty.
Result? A finding by the Court that the MS violated UL or a particular national law is contrary to EUL.
2. Reference for a preliminary ruling.
Result? The Court will nog rule on the compatibility of a NL with the Treaty, but it will provide the national
court with all the criteria of interpretation relating to UL that will allow it to assess compatibility.
The interpretation the Court ‘gives to a rule of UL clarifies and defines where necessary the meaning and
scope of that rule as it must be or ought to have been understood and applied from the time of its coming
into force’.
*Judicial co-operation in CL? = The assistance offered between the judicial authorities of different states,
when they are in need of, for instance, an accused person or evidence located in the territory of another
state.
2. Admissibility of the reference (PRELIMINARY RULING)
Before the Court my interpret UL, the admissibility of the reference by the national court must be determined.
, What is a preliminary ruling?
A decision of the European Court of Justice on the interpretation of EUL, made at the request of a court or
tribunal of a EU MS. Preliminary rulings are final determinations of UL in question by the EU courts. The final
decision remains with the referring court to be decided after it received the preliminary ruling. EU Preliminary
rulings can only be made by the ECJ.
Procedure?
A request (or reference) for a preliminary ruling is made by submitting questions to the ECJ for resolution.
However, questions are not answered in abstraction, but rather are submitted together with the
circumstances leading up to their being asked. Thus, whilst the ECJ is limited to deciding the law in question,
the ECJ's ruling frequently leaves little room to rule other than in a certain way. The ECJ may also decline to
give judgement in the absence of a genuine dispute.
Art 267 TFEU: "The Court of Justice of the EU 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 MS, 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.
Where any such question is raised in a case pending before a court or tribunal of a MS against whose decisions there is no
judicial remedy under NL, that court or tribunal shall bring the matter before the Court.
If such a question is raised in a case pending before a court or tribunal of a MS with regard to a person in custody, the
Court of Justice of the European Union shall act with the minimum of delay."
Which court may be admissible
Art 267 TFEU; The national courts that may refer questions to the Court (lower courts may, higher courts must
refer). Validity of EU law can only be judged by the ECJ. So if the national court has any doubts about the
interpretation of EU law they must refer.
To determine whether the body making a reference is a court or tribunal, the Court looks at whether the
body is established by law, it is permanent, its jurisdiction is compulsory, its procedure is inter parties, it applies
rules of law and it is independent. Those criteria are not absolute.
Who determines whether a question must be raised and when?
The national court determines whether the questions are necessary in order to pronounce judgment. They
have complete discretion in this and do not depend on the permission of their government.
! At any stage in a national proceeding it is possible to raise questions for reference. Any rule of NL
precluding this must be set aside! It follows that questions concerning EU law enjoy a presumption of
relevance. The Court may refuse to rule on a question referred by a national court for a preliminary ruling
only where it is quite obvious that the interpretation of EU law that is sought, is unrelated to the actual facts
of the 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 an useful answer to the questions (Halaf).
What information must be supplied with the order for reference?
The referring court has to provide the Court with evidence to support the view that the court hearing the
case may be required to apply provisions intended to ensure compliance with the rules of UL. If the referring
court fails doing this, than the Court will declare that it has no jurisdiction.
The Court has issued guidelines.
Which kind of questions are admissible?
The Court’s task is to interpret the Treaties and acts adopted on the basis of the Treaties.
A national court may raise the question of whether Union measures are valid, so the Court has to provide its
interpretation of a specific aspect of UL.
! National courts have no jurisdiction themselves to declare that acts of the Union institutions are invalid.
The preliminary ruling procedure has as its objective to ensure the proper application and uniform
interpretation of ComL in all MS and to prevent a body of national case-law that is not in accordance with
the rules of ComL from coming into existence in any MS.
What kind of answer will the Court give?
The Court will provide the national court with guidance on the scope of the rules of Community Law so as to
enable that court to apply the rules correctly to the facts in the case before it and it is not for the ECJ to
apply those rules itself, since it does not necessarily have available to it all the information that is essential for
that purpose.
The ECHR says that there is no obligation to refer to the ECJ for preliminary ruling if they explained
why they don’t refer. National court cannot rule on the validity of EU law.
, See the (article 6 ECHR)ECHR case, Ullens de Schooten and Rezabek v. Belgium. Strasbourg does
not have the jurisdiction to rule that the national law wasn’t in compliance. Refusal is not a violation
of the right to a fair hearing. Also Akerberg Fransson case.
Urgent procedures preliminary ruling, if the suspect is in detention. They have to respond to the
Member State within 3 months. (article 33 of the information Note on References from National
Courts for preliminary Ruling). Urgent procedure applies to areas covered by Title V of Part three of
the TFEU, relating to the area of freedom, security and justice. Art. 267 TFEU: person in custody,
minimum of delay.
Procedural consequences of a finding that NL must be set aside
Interpretation of a UL instrument and the national implementing legislation may lead to the conclusion
that NL is not in compliance with the Union rule. So the NL may not be applied.
The national court will have to take the procedural decision that NL provides for in such cases. It is not
possible to seek assistance of the Court, because it may only provide the national court with an
interpretation of UL, not of NL.
If UL forces a national provision of substantive CL to be set aside, a conviction may not follow. The
procedural consequence of this depends on the national system itself. UL does not force a MS to take a
specific decision, as long as they bring about a result this is in compliance with UL.
*National norm of substantive CL that violates UL
Likely to head to an acquittal (vrijspraak).
*National norm of procedural CL that violates UL
Consequences for the issue to which it relates.
F.e. rules of evidence have not been respected, the evidence may not be used.
The answer to the question what to do in the case of a violation of a procedural rule is that it
Depends on the meaning of the rule and whether the situation might be restored or
compensated.
IMPLEMENTATION
The general term covering both transposition and application
- Transposition: the act(s) by which a piece of EU law is incorporated into the national legal
order
- Application: the practical application of the national transposing provisions to a concrete
- situation or to a number of situations
Difference between:
Directives
- Substantive criminal law
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