• The ECJ can only give rulings on the interpretation of the Treaties and validity of secondary EU legislation, under Article 267 TFEU.
• References are either discretionary or mandatory.
• Bodies that can make a reference have to be courts or tribunals that satisfy the Dorsch criteria.
• If there is a judicial remedy available from a certain UK court, then that specific court has discretion on making a reference.
• If there is no judicial remedy available (usually the court in question being the Supreme Court) then a reference would be mandatory.
• Before making a reference, the courts have to take into account the case law guidelines.
• The UK courts will have to be certain of the issues that would be referred, especially since the procedure is time-consuming and expensive.
• Guidelines should always be considered in detail, to ensure that making a reference is the right choice for the specific case.
The aim of this report is to explain the preliminary reference procedure, under Article 267 TFEU, and how it relates to UK legislation, to discuss its guidelines, present potential criticism on the matter and provide some recommendations on dealing with preliminary references.
Preliminary references are used on matters concerning EU legislation such as:
1. The interpretation of the Treaties ;
2. The validity of EU measures, bodies, offices or agencies of the Union .
These can either be discretionary or mandatory . The function of the preliminary reference procedure is to make sure the interpretation and validity of the EU law is the same across all member states.
Who can make a reference?
Any court or tribunal can make a reference on EU legislation to the ECJ.
In order to determine the meaning of a court or tribunal, the bodies must :
• Be established by law;
• Be permanent;
• Have mandatory jurisdiction;
• Apply inter partes procedure;
• Apply rules of law;
• Be independent.
When making a reference there are certain procedures that can be followed, namely:
• The standard procedure, as set out in the Rules of Procedure of the Court of Justice (OJ 2012 L265/1), Title II;
• The expedited procedure, set out in the Rules of Procedure of the Court of Justice (OJ 2012 L265/1), Title III, Articles 105-106;
• The UPP (urgent procedure), which is set out by Articles 107-114 of the Rules of Procedure of the Court of Justice (OJ 2012 L265/1), Title III.
If there is judicial review available from a national court, then that court has discretion as to whether to make a reference or not. Such courts are, for example: the Magistrates Court, the High Court and the Court of Appeal .
Case Law Guidelines that the UK courts have to take into account when exercising their discretion to refer are:
If a previous ruling exists on a case which has ‘materially identical’ facts , the UK courts can decide not to make a reference.
National rules of precedent do...