Preliminary reference procedure

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Preliminary reference procedure (under Article 234 of the E C Treaty)

EU Law

Art. 234 provides a mechanism for the courts of member states of the E U to obtain definitive answers to certain questions of E C law by referring a question to the E C J (and, in principle, the C F I, following the Treaty of Nice]]. The purpose of Art. 234 is to ensure that E C law can be applied equivalent across the Community. The full text of the Article is as follows.

The Court of Justice shall have jurisdiction to give preliminary rulings concerning:'

(a]] the interpretation of this Treaty;

(b]] the validity and interpretation of acts of the institutions of the Community and of the E C B;

(c]] the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide.

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 of Justice 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 of Justice.

Art. 234 is extremely important, because most of the E C's case-law, including landmark cases such as Van Gend, has been developed as a result of Art. 234 references.

In principle, in answering an Art. 234 reference, the E C J is not acting as an appellate court, but simply ruling on a point of E C law. It remains for the national court to use this information to decide the case. In practice, the ever-widening scope of E C legislation, coupled with the reluctance of national courts to make a reference until the case has been substantively heard (see below]], means that the E C J is often deciding the case, in all but formality.

There are a number of contentious issues concerning Art. 234: the national bodies which may apply it; whether its scope has been widened by the E C J; the circumstances in which a national body must make a reference; and whether the E C J is entitled to refuse to hear a reference.

Which bodies can make a reference under Art. 234?

The Article does not define the scope of court or tribunal. Clearly it will include courts of law, but it is not limited to courts of law. Factors for consideration include:

Does the tribunal exercise power compulsorily? Does it consider points of law? Does it here cases between parties? In the Bruckmeulen case, the E C J was prepared to hear a reference from the Dutch body responsible for certifying doctors' rights to practice.

So far as courts of law are concerned, the right to refer to the E C J appears not to be limited to the higher courts -- even magistrates' courts can make Art. 234 references. Of course, the higher courts in the U K have snobbishly told the magistrates's not to worry their heads with the complexities of E U law, but to leave such matters to the grown ups. The E C J, for its part ( Rheinmullen]], has told the U K higher courts that magistrates' courts can make Art. 234 references if they want, and a dim view will be taken of attempts to prevent them.

So, clearly, courts and tribunals can refer to the E C J if they wish.

What is the scope of Art. 234?

The defined scope of Art. 234 is the interpretation of the Treaty, and the validity and interpretation of legislative acts of the institutions. The third limb of Art. 234 -- validity of statutes of bodies established by the Council -- has not often been exercised. Note that there is no scope, in principle, to rule on the validity of the Treaty, because the E C J has nothing to compare the Treaty to.

However, the E C J is now asked to rule on matters outside the defined scope of Art. 234, as it has created legal principles of its own. So, for example, having ennunciated the doctrine of Direct Effect in Van Gend and Costa v E N E L_, the E C J has to be prepared to be referred questions on the direct effect, if any, of other legislation.

As another example, in Haegeman V Belgium1974 the E C J was asked to rule on the interpretation of the association agreement between the E C and Greece. The E C J accepted jurisdiction, as this agreement was, technically, and Act of the Council. However, this is a very expansive reading of Art. 234, because the E C J was not interpreting or assessing the validity of the Act of the Council -- the creation of the association agreement -- but the agreement itself.

In short, it appears that the E C J is willing to answer questions referred to it on matters which are not specifically defined within the Treaty.

When must a national court make a reference?

A more complex question is that of the circumstances in which a national court must refer to the E C J. It is clear from the wording of Art. 234 that any court from which there is a right of appeal has a discretion whether to refer or not. Guidance on when to make a referral from the U K courts was given byLord denningin Bulmer V Bollinger1972, and this guidance has proven to be very influential over the years. In brief, Denning suggested that the court should make a referal only if the question of E C law was determinative of the matter. If the case could be decided on grounds of national law, there was no need to refer. In addition, there was no need to refer if the answer was not subject to any doubt. Denning, along with later judges, stressed the importance of ascertaining the full facts of the case before making a referral.

The problem with delaying a referral until all the facts are known is that, in a criminal trial, it prevents the defence making a submission of 'no case to answer'. If the ( E C]] law is not known, it is impossible to determine whether there is a case to answer or not. In addition, it is difficult to justify staying a criminal trial for 12-18 months while awaiting a ruling from the E C J.

There is also a problem that the point of E C law might not be as clear as the court believes. For example, in Henn And Darby V D P P1981, the Court of Appeal held that a total ban on the importation of certain pornographic material could not amount to a 'quantitative restriction' for the purposes of Art. 28 (see Abolition Of Quantitative Restrictions]] because a ban was not a 'quantity'. However, as the House of lords later pointed out, the E C Treaty is interpreted purposively by the E C J, and there was already no shortage of case-law to suggest that Art. 28 applied to absolute bans. In addition, the case law of the E C J has to be interpreted on the understanding that it has been translated, and has a technical jargon all its own.

The third para of Art. 234 makes it clear that a court from which there is no appeal shall refer if an issue of E C law is determinative of the case. However, the national courts of all member states have, from time to time, refused to refer in circumstances in which many commentators believe they should have refered. Guidance on referal was provided in Cilfit1982. In short, despite the mandatory wording of the Treaty, a national court need not refer if:

the interpretation of E C law is so clear that only one outcome is reasonable a case with similar facts has already been decided by the E C J the interpetation of E C law would have no relevance to the outcome of the case. The notion that a referral need not be made if there is no doubt about the answer is similar to the concept of acte claire in French administrative law, by which the E C J was no doubt influenced.

Cilfit is interesting in that it suggests that a national court need not refer if the issue of E C law has similar facts to those of issue on which the E C J has previously ruled. It does not require that the facts be identical. This suggests that the E C J expects its decisions to have precedential value which is binding on national courts. If this view is correct, then it represents a significant departure from the relationship between the E C J and national courts as it was originally envisaged, as bilateral and horizontal. If the decisions of the E C J have the status of binding precedent, then this makes the E C J more like an appellate court that an advisory body, for better or worse.

The Cilfit ruling has been criticised because it allows a superior court of a member state to decline to make a reference when, in fact, the point of E C law is not as clear as it might think. When even a court as experienced as the Court of Appeal can make an elementary error of E C law -- as in Henn and Darby, Cilfit can be seen as allowing the divergence of interpretation of E C law in member states.

Can the E C J refuse to hear a reference?

The E C J has been known to refuse a reference in the following circumstances.

Where the reference amounts to an abuse of process. For example, because there is no time limit on references under Art. 234, litigants have tried to exploit it to get around the 2-month time limit in an Art. 230 Action For Annullment. Alternatively, parties have contrived a case to raise an Art. 234 reference, knowing full well that they would not have had standing under Art. 230. A good example is Foglio V Novello1982, in which the parties to the litigation had formed a contract for the importation of wine which they knew perfectly well one of them would breach, in order to get a declaration of invalidity on France's taxation of wine consumption. The E C J refused to answer the reference, because it was common ground between the parties that French law was contrary to the Treaty. There was therefore no real dispute between the parties, so the reference was an abuse of the E C J's process The questions raised have no relevance to the case before the national courts The questions are not articulated clearly enough to answer The facts of the case are not clear