Article 234 Procedure


1.1 The composition of the ECJ

??? The ECJ is made up of two courts
1. The higher of the two courts is also known as the ECJ
2. The lower court is known as the Court of First Instance
??? The CFI was created in 1989 ??“ has a key role in competition enforcement ??“ appeal on point of law only from CFI to ECJ

1.2 The Jurisdiction of the ECJ

??? The ECJ has a vital role in developing EC law, but enforcement is often the responsibility of the national courts.
??? If national courts are faced with a question of interpretation of EC law, Art 234 EC enables/requires a national court to refer questions on EC law to the ECJ.

1.2.2 Direct action against institutions of the Community for Breaches

??? Article 230 EC ??“ The ECJ can review legality of Acts of other EC institutions

Case: Roquette Freres v Council [1980]
o ECJ Annulled Council Regulation because it had failed to adequately consult Parliament
??? Article 232 EC ??“ The ECJ can review the failure of other institutions to take action when they are under a legal duty to do so
??? Article 235 EC and Article 288 EC ??“ ECJ can order institutions to pay damages if it judges this appropriate.

1.2.3 Direct actions against individuals for breach of EC Law

??? Article 226 ??“ the Commission has the right to bring MS before the ECJ to fulfil its Treaty obligations
??? Article 227 ??“ One MS has the right to bring another MS before the ECJ for failure to fulfil its treaty obligations (however must take matter to the Commission first)
??? Article 228 ??“ ECJ may , at the request of the Commission, impose a financial penalty on the MS that disobeys its judgement

1.2.4 Direct actions against individuals for breach of EC Law

??? Cases can NEVER be brought against individuals in the ECJ.


??? Deal with cases brought under Art 230 EC by individuals.


??? Individuals only have limited rights to take action before the ECJ
??? They can in limited circumstances sue an institution
??? They cannot sue another individual or a Member State before the ECJ
??? Individuals assert their Community rights in their own national courts
??? Individuals rely on the principles of Direct Effect, indirect effect and State Liability.
??? EC Law can be used in any proceeding of national law


??? Article 234(1)(a) EC ??“ ECJ has the jurisdiction to make rulings on interpretation of the treaty and acts of the institutions (i.e. secondary legislation) and the European Central Bank
??? Article 234(1)(b) EC ??“ ECJ has the jurisdiction to make rulings on the validity of secondary legislation
??? If a question concerning interpretation of the treaty is raised before any national court or tribunal, than that court MAY refer the question to the ECJ, if it considers the ruling necessary to allow it to give judgement.
??? HOWEVER if the national court is one against whose decisions there is no judicial remedy under national law, that court MUST refer the matter to the ECJ if it considers that a ruling is necessary
??? It is the courts decision whether to refer or not; litigants may request the court to refer, but cannot oblige it to do so.
??? A court of mandatory jurisdiction: A court against whose decisions there is no appeal
??? A court of permissive jurisdiction: A court against whose decisions can be appealed.

4.2 Article 234 Procedure

??? The only institution that can give authoritative rulings on the interpretation of EC law if the ECJ
??? In outline, what a national court will do in this situation is:
1. Decide to make the reference
2. Formulate the question
3. Send those questions to the ECJ
4. ECJ answers questions posed
5. National Court decides the case for itself
??? This is not an appeal from the national court to the ECJ, in fact the national court has not yet given any judgement; nor is the ECJ being asked to give any judgement or award any remedy

4.3 The Role of the National Courts

??? What makes a body a court or a tribunal
Case: Dorsch Consult [1997]
o The ECJ listed 7 factors in determining what makes a court or tribunal:
1. Whether the body is established by law
2. Whether it is permanent
3. Whether its jurisdiction is compulsory
4. Whether its procedure is inter partes (had hearings where all parties could be present and heard)
5. Whether it applies rules of law
6. Whether it is independent
7. Whether its decisions are judicial and therefore binding
o The ECJ decided that not every one of the factors need be satisfied; it was sufficient if most of them were present

Case: Broekmeulen [1981]
o Predates Dorsch Consult ??“ boarderline case
o ECJ held that Appeals committee was a court or tribunal as it operated with the approval and assistance of the public authorities; it reached its decision after granting full hearings; the decisions were final and not subject to appeal.
Case: Nordsee v Redederei Mond [1982]
o ECJ ruled that an arbitrator was not a court or tribunal within the meaning of Art 234 and so could not make a reference to the ECJ
o The ECJ stressed the voluntary nature of the arbitrators jurisdiction and the absence of official involvement in the arbitration process.

4.4 The CILFIT Criteria

??? Assuming a body is a court or a tribunal Art 234 EC indicates that it must decide whether or not a ruling is ???necessary??™
??? The ECJ has guidelines for deciding whether or not a ruling is necessary:

Case: CILFIT Srl v Ministro della Sanita [1982]
o A decision on a question of EC law will NOT be necessary if:
1. The question of interpretation raised is not relevant to the conclusion of the case
2. Where previous decisions of the ECJ have already dealt with the point
3. Where the correct application of EC Law is so obvious as to leave no scope for reasonable doubt; and the court is convinced that the matter is equally obvious to the courts of other MS and to the ECJ
Da Costa en Schaake [1963]
o The third CILFIT criterion is essentially a rewriting of the Doctrine of Acte Clair which was set out in Da Costa: No reference will be necessary if the national court considers that EC Law point before it is clear and free from doubt
o If the ECJ has already ruled on a similar point of interpretation this does not preclude a reference
o This could however be a reason for the court not to refer (No2 of CILFIT)


??? Art 234 EC ??“ [courts] against whom there is no judicial remedy under national law

Case:Costa v ENEL [1964]
o The highest court in the national system for ???that particular type of case??™
??? If a court of mandatory jurisdiction considers a decision necessary, it has no choice, it must refer the question to the ECJ

Case: Kobler v Austria [2003]
o Confirmed that a state can be sued (under the principle of state liability) if its court of mandatory jurisdiction fails to make an Article 234 EC reference


??? A court of permissive jurisdiction MAY refer the question to the ECJ or they may decide the question for themselves. If they interpret EC Law incorrectly, the losing party should be able to appeal, ultimately up to a court of mandatory jurisdiction who will be under an obligation to refer.
??? The ECJ??™s information note contains some guidance which national courts should consider:
1. References are ???particularly useful??™ where there is a new question of interpretation, for uniform application; where existing case law does not apply to a certain set of facts
2. A higher national court cannot prevent a lower national court making a reference if it chooses to do so (Rheinmuhlen ??“ Dusseldorf )
3. A national court cannot declare a piece of EC Law invalid (Foto-Frost)
4. It is up to the national court to decide at what stage to make a reference; it is usually appropriate for the national court to establish the facts of the case and decide issues of national law first. Irish Creamery
4.6.2 UK Guidelines

Case: R v International Stock Exchange, ex p Else Ltd [1993]
o Lord Bingham encouraged national courts to refer
o ECJ has far more expertise in issues of EC law than national courts
Case: Trinity Mirror Group Newspapers [2001]
o Court of Appeal suggested that national courts show a greater measure of self restraint to ensure the ECJ did not collapse under its case load
o References most important where they are of general importance ance would promote uniform application

4.8 Does the ECJ ever refuse to accept a reference

??? The ECJ can only give a ruling on the meaning of EC law ??“ not on the meaning of national law
??? The ECJ is unlikely to accept a reference in absence of genuine dispute
??? The ECJ is unlikely to accept a reference where relevant background and necessary information is not provided

Case:Costa v ENEL
o A question by the Italian courts as to whether the national law conflicted with EC law was held to be ???imperfectly formulated??™
o ECJ did not reject the question, but reformulated it so that it could interpret the relevant provisions of the EC law enabling the Italian court to assess compatibility for itself.
Case: Foglia v Novello [1980]
o The ECJ refused to accept the reference in ???absence of genuine dispute??™.
Case: Telemarsicabruzzo v Circostel
o Questions with insufficient information about factual background or relevant provisions of national law were be rejected


??? A ruling by the ECJ is binding on the court which made the reference
??? Article 10 EC ??“ National courts in all MS must apply the ruling in subsequent cases involving the same point.
??? s.3(1) and (2) of the European Communities Act 1972, requires UK courts to follow ECJ rulings

Structure for Art 234 Reference

Is the body a court or a tribunal
Apply Dorsch Consult
Is a decision on a point of EC Law necessary
Apply CILFIT criteria
( (
Cout of final instance (mandatory) | Court subject to appeal (permissive)
( ECJ Guidance Notes
Must make reference May make reference
( (
Both are bound by ECJ Ruling