The European Union is an organization that brings together all the member states in Europe. The Treaties of the European Union are the international treaties that are applicable between the member states of the European Union. Two main treaties of the European Union spell out the procedures and objectives of their formation. The first one is the Treaty on European Union. This treaty was signed in Maastricht in the year 1992. Another agreement is the Treaty of the Functioning of the European Union that was initially approved in Rome in 1957. This treaty was named the Rome Treaty because it was signed in Rome.
This paper discusses the operation of Article 267 of the Treaty of the Functioning of the European Union. The paper focuses on when the Court of Justice of the European Union should accept and when it should decline references. Also, it outlines the reasons why the national courts should know when and how to refer. For clarity purposes, this paper will discuss examples of the cases within the Treaty of the Functioning of the European Union that have affected by the preliminary reference procedure.
The Preliminary Reference Procedure described in Article 267 of TFEU is a standardized mechanism that enables good cooperation between the Court of Justice of the European Union and National Courts. The procedure ensures a good dialogue between the two institutions. The article serves three primary purposes.
The first purpose is to provide national courts of the member states on the questions regarding the interpretation of European Law. European Law is regarded as the supreme law in the land. Due to interpretation, the CJEU should ensure that all national courts understand every provision of the EU law. The primary purpose of the understanding is to ensure that the federal courts apply the rules appropriately.
The other purpose of Article 267 of TFEU is to contribute to a uniform application of EU laws in all member states. In Europe, the member states operate under prevailing laws that are applicable in particular countries. However, some national courts may find difficulties in the application of EU laws due to the difference in the provisions of other government regulations that are applicable in particular countries.
The preliminary reference procedure ensures that the EU laws are applied in a similar manner in all member states. In cases of similar nature in any member state, the EU law should be involved in a similar capacity. For instance, a similar situation that is handled by a national court in Ireland should be treated in the same manner in the United Kingdom.
The third purpose of the preliminary reference procedure is to create an additional mechanism on the annulment of an EU law. In this regard, Article 263 of TEU states that the Court of Justice of the European Union shall review the legality of the legislative acts as well as other recommendations and opinions from the European parliament. This article is an indication the CJEU is considered as the highest court in for the member states.
The national courts are supposed to refer some questions to the CJEU. However, not all questions should be applied to the court of justice. The federal courts should know when and how to refer. Besides, the Court of Justice of the European Union does not accept each reference presented before it. Therefore, the court of justice should also know when to accept and when to reject a recommendation from the national courts.
For a reference to be made to the court of justice, the body making such a referral should be court or a tribunal. The law should establish the body referring. In this regard, a national court which is not established under the rule of that particular country cannot present a reference to the court of justice. The body should also be a permanent establishment. The court of justice should verify the source of the text before accepting it.
Besides, the body that intends to refer should ensure that it operates on a compulsory jurisdiction that enables it to make such a reference. The national courts that are mandated to make recommendations should comply with the terms and conditions of the European Union Law. Moreover, the text to be made should apply to the rule of law. The case or the question should refer to the European Union to enable a valid reference. The court of justice should not accept a reference of a case or question that does not apply to the rules and regulation set by the European Union.
Another important factor is that the case or the question to be referred to the court of justice should be between parties. As far as parties are concerned, a case can be held between individuals or entities. Moreover, some cases involve two countries. In most cases, the countries tend to be the member states. The primary purpose of referring a case is to ensure proper application of the law. In a national context, various courts operate under different levels.
The high court is one of the lower-level courts in many member states. Some of the cases that cannot be handled by the high courts are always taken to other higher courts such as the court of appeal and the Supreme Court. Similarly, cases from the national courts can be referred to the Court of Justice of the European Union.
Over the years, there have been several transformations in European Law. The changes have been brought about by the amendments of the laws by various legislative authorities. Recently, the United Kingdom announced the need to quit the European Union. In the move termed as Brexit, the country intends to operate independently from the provisions of the European law. In the long run, such moves can affect the operations of the Court of Justice as far as its composition and operations are concerned.
Broekmeulen v Huisarts Registratie Commissie case illustrates the facts that the body that intends to refer a case or a question should be a court or a tribunal. According to this case, it was decided that in the absence of any right of appeal to the ordinary courts, the appeals committee is considered as a court or tribunal of the member state under the provisions of Article 177 of the Treaty.
Moreover, the appeals committee should operate with the consent of the governmental authorities in the member states in matters involving the application of community law. In this case, the European Court applied the provisions of Article 177 of the EEC treaty to interpret the case that was pending before the appeals committee.
The court determined that the law of the member state established the appeals committee and that the case applied to the rule of law. About this case, the court of justice should identify the source of the case or the question of before accepting it. The national courts should also ascertain that they are in a position to refer to the European Law according to the legislative provisions.
Nordsee Deutsche Hochseefischerei GmbH v Reederei Mond Hochseefischerei Nordstern AG & Co KG  is a case that was referred to the Court of Justice of the European Union based on Article 267 of the TFEU. In this case, it was held that the Court of Justice could not accept the fact referred to it by the arbitrator. An arbitrary body is not considered as a court or a tribunal.
The CJEU could not take this case based on the fact that the organization that referred to the case was not a court or tribunal of the member state. Besides, the CJEU should consider that the question referred to it is public, not private. For the CJEU to accept an item or a case related to it, it should fulfill the requirements of the European Law. The most crucial factor is whether is body covering is a court or tribunal of the member state or not. Based on this ground, the CJEU has rejected several cases and questions presented to it, such as the Nordsee case.
According to the provisions of the Treaty of the Functioning of the European Union, a court should transfer a case if the reference is crucial to the decision. As far as judgments and court decisions are concerned, some examples are considered to be essential. In such situations, the national courts may not have the ability to come up with a conclusive decision on that particular case.
For instance, cases involving a dispute between the member states would not be decided at the national court level. Therefore, referring the matter to the Court of Justice of the European Union is the best option. The CJEU normally accepts such referrals because the decision involved is crucial. Furthermore, the national courts of the member states should ascertain that the reference is essential to the conclusion and that they cannot handle it.
Another importance of Article 267 of the TFEU is the need for consistency across the European Union. As far as compatibility is concerned, European law should be applied in all member states. In other words, a similar case that was referred to the court of justice should also be referred to the same court regardless of the member states involved. Over the years, the European Law has been applied in the member states to solve various cases of similar nature.
The Court of Justice can use the previous examples to accept the reference from the national courts. For instance, if the court hand handled a similar situation during the last years, it can use that basis to accept the referral at hand. However, the reference should comply with the provisions of European law even though the case is similar. This is another essential factor to answer the question ‘when should the court of justice accept references from the national courts?’
R v International Stock Exchange of the UK and RoI, ex p Else (1982) Ltd  is a case that was concerned with a dispute over harmonized rules provided by the European Union Council Directive 79/279. In this case, the national court made a conclusive decision that there was no need to refer to the court of justice.
The federal court of the member state the reference was not crucial as far as the decision was concerned. Moreover, the then Lord Bingham warned that if there was doubt, the national court was free to request for a preliminary ruling from the court of justice of the European Union.
However, the base in which the reference could be made was not crucial. Therefore, the recommendation was not made. National courts should use this concept to determine the types of cases that they should refer to the international court. They should focus on the importance and magnitude of the decision of the claim or question to be related to.
Also, the reference should be an advantage of the Court of Justice. The primary mandate of the CJEU is to ensure the implementation of the European Law. The reference to the court should aim at meeting the court’s objective. The reference should not be based on mere facts that can be handled by the national courts of member states.
The case referred should not be a disadvantage to the court of justice. The case can be a disadvantage if it based on irrelevant facts that are not applicable in European Law. For instance, the decisions that cannot be applied internationally between the member states may be a disadvantage to the court of justice. Therefore, the court of justice should ascertain that the reference is made subject to the provisions of Article 267 of the Treaty of the Functioning of the European Union.
For the court of justice to accept a reference, the question should be clear, not hypothetical. By clarity, it means that the question is in line with the provisions of the European law. The national courts of different member states should ensure that the questions referred to the CJEU are not hypothetical.
Moreover, the national courts should follow the set procedure of making a preliminary reference. They should adhere to the set rules in accordance with Article 267 of the TFEU. Hypothetical questions should not be accepted by the court of justice.
If the case has no right of appeal in the member state, the national court must refer. This scenario subjects the national court to a mandatory transfer to the Court of Justice. If a case has not been solved in the highest court of the member state there should need to solve the case elsewhere.
Therefore, that particular court or tribunal should ensure that the case is solved by referring to the CJEU. For instance, the Supreme Court of the United Kingdom is the highest court in the UK. A case which cannot be solved in that court has no other option but to refer to the CJEU. The court of justice should investigate whether the reference was a result of no right of appeal in the member state. In such a scenario, the CJEU should accept the reference.
Costa v ENEL  is a case that illustrates a scenario where there is no right to appeal. In this case, there was no right to appeal to the Italian court. Therefore, the Court of Justice of the European Union decided that the case should be referenced under section 234 (3) of TFEU.
The magistrate who handled the case in the national court was unable to come up with a remedy and the final decision on the case. The court of justice can use such previous cases to determine when to reject and when to accept references from the national courts.
On the other hand, the national courts should also use the previous records to decide how and when to refer a case to the court of justice. These cases also present a good understanding of the functioning of the court of justice. They portray the fact that the court is performing its duties.
However, there are some cases when the court should not refer to it. For example, when the national court has determined the case according to the interpretation of the law, there would be no need to apply the case to the court of justice. The national courts should not affect the instances on unnecessary grounds. Instead, they should interpret the law accordingly.
Besides, the courts should focus on the uniformity of the application of European law. All courts in the member states should operate according to the requirements of Article 267 of TFEU as far as references are concerned.
Da Costa en Schaak is a case that illustrates the reasons why the courts should not reference some cases. In this case, the Court of Justice held that the national courts should rely upon the previous decisions made by the courts rather than compelling them to make references. In this case, the court had referenced a question which it had answered appropriately.
The interpretation of the same subject by the court of justice was similar to that of the court. There was no need to refer. The CJEU instructed that the national courts should interpret the law effectively to avoid unnecessary references.
According to the Acte Clair doctrine of the European law, the court of the member stets has no duty to refer a question for a preliminary ruling in the CJEU if the national court has passed a clear judgment. This doctrine dates back to the case Srl CILFIT v Ministry of Health in the year 1982.
In this case, the court found that the law hand is implemented clearly, and there was no need to refer for a preliminary ruling. Since then, there have been cases that are decided by the national courts following the provisions of the law. The court justice has avoided such references to prevent repetition and wastage of time in answering a question that has already been answered.
As far as the provisions of the Treaty of the Functioning of the European Unions are concerned, the national courts apply the guidelines given by the CJEU to the facts of any case presented before them. After a successful application and interpretation of the law, the national courts make final decisions in particular cases. Regardless of the member states, the guidelines of the CJEU are internationally applicable.
In the case, Arsenal FC v Reed , the High Court of Justice of England and Wales mad a referred a question to the Court of Justice for a final decision. The CJEU made a final decision after interpreting the provisions of European law. The decision made by the CJEU, in this case, portrayed that courts relied on the guidelines given by the CJEU. Where there are many questions about the application of European law, the courts should refer to the CJEU or the preliminary ruling. Regardless of the number of questions about a particular case, the courts can apply. However, the decision of the case will depend on whether the CJEU accepts the reference or rejects it.
In summary, the Court of Justice should consider different factors before accepting or declining a reference. One of the elements is whether the body which is referring is a court or tribunal of the member state. The CJEU should also ensure that the reference is necessary and that it is likely to be advantageous to the court. The national courts should also ensure that they interpret the law accordingly to avoid unnecessary references. The CJEU provides the guidelines on the interpretation of European law to the federal courts.
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