European Union Law ( EU Law) - The discretionary reference procedure
According to Pigs Marketing Board v. Redmond (Case 83/78) [1978] ECR 2347, it is fully up to the national courts to decide when and which questions to refer. It is typical, but not required, that one or more parties will have attempted to rely on a piece of EU law during the course of the case. However, if the national court feels that doing so will help it make a judgement, it may do so on its own (Verholen (Cases C-87 to 89/90) [1991] ECR I- 3757). The request for a judgement must be submitted while the case is still being heard by the national court. After that, it is too late because the national court would no longer be competent to render a ruling because the ECJ decision is no longer "required" (Pardini (Case 338/85) [1988] ECR 2041). There is discretion whether or not to send the case to the ECJ for those national courts or tribunals falling within the second paragraph of Article 267 (and this is the vast majority of them). According to national precedent, this discretion cannot be altered (Rheinmuhlen-Dusseldorf (Case 166/73) [1974] ECR 33). Despite a higher court's decision to the contrary, a lower court may send a case to the ECJ. The ECJ's prior ruling on a specific issue should not by itself exclude additional referrals. The ECJ declared in Da Costa en Schaake (Cases 28 to 30/62) [1963] ECR 61 that it had the authority to deviate from earlier rulings. In Bulmer v. Bollinger (1974), a Court of Appeal decision, Lord Denning MR emphasized that national courts only needed to get a ruling where it was "essential" to allow them to render judgment. It should be noted that the word is "essential," he continued. Compared to "desirable" or "convenient," this is more stronger. In some situations, if the point were determined one way, the trial would be significantly shortened. However, if the outcome was the opposite, the trial would last the entire time. It might be "desirable" or "convenient" in this situation to consider it as a starting point. But at that point, it wouldn't be "essential." Investigation of the facts may reveal that it was entirely unneeded. The case would be decided entirely on different criteria. Generally speaking, one cannot determine if a point needs to be decided until all the facts are known. Consequently, it is generally advisable to decide the facts first. He continued by listing a number of issues that national judges should take into account when determining whether or not to use the procedure, including time, cost, the workload of the ECJ, and the preferences of the parties. Although it goes without saying that the comments of the Master of the Rolls—as Lord Denning was at the time—are significant, keep in mind that the aforementioned advice may not necessarily represent the position of the ECJ. However, time is undoubtedly more important in criminal matters because a prisoner may have to wait while on remand while the ECJ deliberates its decision. This problem has just been resolved: the Lisbon Treaty included the fourth paragraph of Article 267, requiring the ECJ to act "with the smallest possible delay" in circumstances involving "a person in custody."
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