European Union Law (EU Law) - The ECJ's role in the initial reference process
The ECJ is expected to be "reactive," which means that it should respond to inquiries from the national courts. Occasionally, the ECJ will adopt a more "proactive" stance and reword a query so that the guidance it provides to the national court is more helpful. Even less frequently, the ECJ will respond to a question that was never posed if it believes doing so will help the national court reach a decision. The case of Marks & Spencer v. Customs and Excise Commissioners (Case C-62/00) [2003] QB 866 is a nice illustration of this. The ECJ had been questioned by the Court of Appeal about Directive 77/388. The ECJ observed that the question was founded on the incorrect assumption of direct effect and, after educating the Court of Appeal on that matter, came to the conclusion that it (the ECJ) required to rephrase the question (otherwise the response would not make sense). The Court ruled that in accordance with the [Article 267] mechanism for cooperation between national courts and the [ECJ], the latter must give the referring court an answer that will be helpful to it and allow it to decide the case at hand. To that end, the Court might need to reword the query that was sent its way. The legitimacy of national law cannot be considered by the ECJ. In the event that it is requested to, it may either rephrase the question and provide an abstract response regarding the pertinent aspect of (EU) law (Costa v ENEL (Case 6/64) [1964] ECR 1141) or it may simply decline to respond to the question (see Foglia v Novello (Case 104/79) [1981] ECR 745; Bacardi-Martini v Newcastle United (Case C-318/00) [ Additionally, the Court is not intended to think about how national courts should apply EU law, but it has done so in the past by rendering "practical" decisions (Stoke-on-Trent City Council v. B&Q (Case C-169/91) [1993] 2 WLR 730). Given that the border between interpretation and application is probably fairly thin, this is not surprising.
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