Essay Eu Law Notes

Homewood: EU Law Concentrate 4e

Essay question

'Article 267 TFEU embodies a method of co-operation between national courts and the Court of Justice which ensures that EU law has the same meaning in all the Member States.'

How far do you consider this to be an accurate evaluation of the Article 267 preliminary reference procedure?

Court of Justice's jurisdiction and the purpose of Article 267

  • Under Article 267 TFEU the Court of Justice has jurisdiction to give rulings on questions of interpretation of EU law.
  • The national court has a duty to apply the Court's ruling to the facts before it.
  • Article 267 is not an appeals procedure but envisages a system of cooperation between the Court of Justice and national courts to ensure that EU law is interpreted uniformly across the Member States.

The scheme of Article 267

  • Where it considers a decision on a question of EU law is necessary to enable it to give judgment, any court or tribunal may refer that question to the Court of Justice (the discretion to refer): Article 267(2).
  • Where a question of EU law is raised before a national court against whose decision there is no judicial remedy under national law, that court must refer it to the Court of Justice (the obligation to refer): Article 267(3).
  • The scheme of Article 267 is thus set up to provide for references to be made, where necessary, at some stage in national proceedings, before a case is finally concluded.

Discretion to refer

  • The Court of Justice has provided guidance on how the Article 267(2) discretion might be exercised. The English courts have also made declarations on this matter. Whilst guidance from the Court of Justice clearly carries more authority than any statements of national courts, neither can fetter the Article 267(2) discretion. Lower courts remain free to refuse to make a reference.


  • It is for the national court to determine the relevance of the questions referred (Dzodzi). If a question is not relevant, a reference will not be necessary.

Acte clair

  • Similarly, a reference will be unnecessary if a provision of EU law is clear. In this respect, the CILFIT criteria for acte clair provide useful guidance. The matter must be equally obvious to other national courts. The national court must bear in mind that EU law is drafted in several languages; that EU law uses terminology that is peculiar to it; that legal concepts do not necessarily have the same meaning in EU law and the law of the various Member States; and that EU law must be placed in its context.
  • Moreover, as Bingham J (as he then was) pointed out in the English High Court in Samex the Court of Justice has distinct advantages not necessarily enjoyed by a national court. It can make comparisons between EU texts in different language versions, has a panoramic view of the EU and its institutions and possesses detailed knowledge of EU legislation. Later, Sir Thomas Bingham MR (as he later became) in ex parte Else again referred to the advantages of the Court of Justice in interpreting EU law, declaring that 'if the national court has any real doubt, it should ordinarily refer'.
  • Because the CILFIT criteria for acte clair demand a significant level of language expertise on the part of the national court, as well as an overview of EU law, in reality they are not easily satisfied, suggesting that a reference will often be necessary.

Previous ruling

  • A previous ruling by Court of Justice on a similar question does not preclude a reference, though it may make it unnecessary (Da Costa).

National rules of precedent

  • National rules of precedent have no impact on the discretion to refer (Rheinmühlen). The ruling of a higher national court on an interpretation of EU law does not prevent a lower court in the national system from requesting a ruling on the same provisions from the Court of Justice.
  • Notwithstanding the guidelines, the discretion to refer does not deprive a lower national court of the right to reach its own conclusions on the meaning of EU law and to decline to make a reference. That is so even if, in the terms of Article 267(2), a decision on the question is 'necessary' to enable it to give judgment. Article 267 is designed to ensure that any questions of EU law will ultimately be referred at the stage of final appeal.
  • However, the obligation to refer is not absolute (please see below).

Obligation to refer

  • Given the central purpose of Article 267 – to prevent the creation, in any Member State, of a body of national case law that is inconsistent with EU law – it would be reasonable to conclude that the obligation of courts of last resort to refer would be absolute and unqualified.
  • However in CILFIT the Court of Justice recognized exceptions to the obligation. A national court of last resort has no obligation to refer where a question of EU law is not relevant; where the Court of Justice has previously ruled on the point; or where the correct interpretation of EU law is so obvious as to leave no scope for reasonable doubt as to its meaning (the doctrine of acte clair).


  • Where the question of EU law is not relevant to the national proceedings, there is no risk to consistent interpretation of EU law in that case.

Previous ruling

  • Similarly, where the Court of Justice has already ruled on the point, consistency of interpretation is not compromised, since the national court must apply that ruling.
  • In setting out the 'previous ruling' exception in CILFIT, the Court of Justice was re-iterating its earlier conclusion in Da Costa.
  • Da Costa and CILFIT indicate the development of a system of precedent. The Court of Justice permits, and indeed encourages, national courts to rely on its previous rulings, not only when the facts and questions of interpretation are identical but also when the nature of the proceedings is different and the questions are not identical.
  • Moreover, preliminary rulings are binding not only on the parties to the dispute but also in subsequent cases.
  • Nevertheless, the binding effect of a preliminary ruling does not preclude a national court from seeking further guidance from the Court of Justice. The Court retains the right to depart from its previous rulings and may do so, for instance, when a different conclusion is warranted by different facts.
  • The development of precedent, together with the binding effect of preliminary rulings, has brought a subtle change to the relationship between the Court of Justice and national courts. Whereas that relationship was originally perceived as horizontal, with its roots firmly grounded in cooperation, it is increasingly becoming vertical in nature, with the Court of Justice occupying a position of superiority to the national courts.

Acte clair

  • As already noted, CILFIT defined the scope of this exception narrowly.
  • The CILFIT criteria are difficult to satisfy and, in practice, national courts have tended to interpret acte clair more loosely, allowing them to avoid references.
  • However, too broad an approach to the application of acte clair may carry risks, for instance, where a national court of last resort avoided a reference in reliance on acte clair and one of the parties was deprived of EU law rights as a result. In Köbler the Court of Justice held that state liability in damages would arise if it was manifestly apparent that a national court had failed to comply with its obligations under Article 267(3), for instance by misapplying the doctrine of acte clair.

Rejection of references

  • Finally, the system of cooperation envisaged by Article 267 has not operated in cases where the Court of Justice has declined to accept a reference: where there is no genuine dispute between the parties (Foglia), where the questions referred are irrelevant or hypothetical (Meilicke), and where the national court has failed to provide sufficient legal or factual information (Telemarsicabruzzo).
  • Where the dispute is not genuine or the questions are irrelevant or hypothetical, the consistency of interpretation of EU law is not put at risk.


Whilst it is true to say that Article 267 TFEU embodies a method of cooperation between national courts and the Court of Justice which, on the whole, ensures that EU law has the same meaning in all the Member States, this outcome is not always guaranteed. In particular, courts of last resort, in considering the clarity of EU provisions frequently tend to apply acte clair broadly, avoiding the obligation to refer.

This is a sample of our (approximately) 5 page long Goods Essay notes, which we sell as part of the European Law Notes collection, a 1st package written at Oxford in 2017 that contains (approximately) 786 pages of notes across 47 different documents.

Goods Essay Revision

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EU Supervision 7 Essay

(i) As regards the inspection requirement, Burmanjer explained that the necessity of authorisation is categorized as a certain selling arrangement (CSA) as coined in Keck para. 16. Absent any precise defnition, the meaning of CSA has crystallized through the case law. Thus, the need to the "inspected by the GBA" would likely be classifed as a CSA. A CSA will fall outside the scope of Art 34 TFEU if it 'applies to all affected traders operating within the national territory and provided that it affects in the same manner, in law and in fact, the marketing of domestic products and those from other Member States' (Keck para. 16). As regards

the frst condition, the inspection

requirement applies to all traders regardless of origin, and is thus satisfed. As regards the second condition, while there may be a remote possibility that foreign traders would in fact be at a disadvantage owning to unfamiliarity with the GBA, possible language barriers, or transportation logistics,

the Court indicated in Burmanjer that such marginal effects would probably be 'too

insignifcant and uncertain' to be regarded as being such as to hinder or otherwise interfere with trade between Member States." (para. 31) Thus it is submitted that the rule falls outwith art 34. As regards the packaging requirement, the Court specifcally indicated in Keck that such a requirement would be considered a "product requirement" and fall under the category of a 'measure having equivalent effect' to a quantitative restriction. As such, it falls within the ambit of Art. 34 unless justifed by a 'mandatory requirement' or by an Art. 36 derogation, both of which must satisfy a proportionality test. Article 36 provides a fnite list of derogations from the principle of free movement of goods. Under this Article, the German government would be advised to make three submissions. First, that the requirement to package all materials in recyclable material serves the protection of animal and plant health as non recyclable plastic bags damage the natural habitat of all wild animas and plants. Secondly, although FFAD suggest that Art 36 does not include environmental protection, AherWaggon and particular PressenElektra suggest that environmental protection is included, the latter case pointing particularly to the merit of recycling in reducing the emission of greenhouse gases, which Germany is also concerned about. Art 36 aside, in Cassis de Dijons, the court provided an open ended list of 'mandatory requirements' to supplement the Treaty. The German government is thus advised to also submit that the rule would be licensed under the protection of environment mandatory

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