European Union Law ( EU Law) - The mandatory reference procedure
Introduction The court or tribunal "may" make a request under Article 267's second and third paragraphs, respectively, and "must" refer to courts or tribunals whose rulings lack a legal recourse under national law. This means that the requirement to refer only applies to some courts or tribunals. Which courts are they, I wonder? An Italian magistrates' court had made a request in Costa v. ENEL (Case 6/64) [1964] ECR 1141. Due to the little amount of money at stake, there was no appeal of the magistrates' ruling. "By the wording of this Article... national courts whose decision, as in the current case, is not subject to judicial review, shall submit the matter to the Court of Justice," the ECJ declared (emphasis added). Despite being a little vague, it has been interpreted to mean that while most courts (like the English Court of Appeal) are normally subject to the second paragraph, they may find themselves subject to the third paragraph if there is no avenue for appeal in a given situation. The Court of Appeal initially believed that it was never covered by the third paragraph. According to Lord Denning MR, "short of the House of Lords, no other English court is bound to send a case" to the ECJ in Bulmer v. Bollinger (1974). However, Balcombe LJ made the following observation in Chiron Corporation v. Murex Diagnostics (No 8) [1995] All ER (EC) 88: A court "against whose rulings there is no legal remedy under national law" is referred to in [Article 267]. I'll refer to such a court as the court of last resort for convenience. The Court of Appeal shall be the court of last resort where there is no right even to apply to the House of Lords for leave to appeal from a decision of the Court of Appeal, as in the case of a refusal by the Court of Appeal to grant leave to appeal against a decision of the court below or a refusal by the Court of Appeal, on a renewed application, to grant leave to apply for judicial review. Therefore, Lord Denning MR overstated the case [in Bulmer v. Bollinger]. As the "court of last resort" for the UK, the Supreme Court of the United Kingdom took the position of the House of Lords in 2009. The ECJ has looked into this matter, albeit within the framework of the Swedish legal system. Case C-99/00 Lyckeskog [2003] 1 WLR 9 The European Court of Justice was questioned about whether a Swedish procedural rule, which required a "declaration of admissibility" before a case could be appealed from the Court of Appeal to the Supreme Court, meant that the former court was, in fact, a "court of last resort" (to borrow Balcombe LJ's phrase). In accordance with its own Code of Procedure, the Supreme Court may only declare an appeal admissible if: it is crucial for guidance in the application of the law that the Supreme Court examine the appeal; or there are special grounds for examination of the appeal, such as the existence of grounds of review on a point of law, a formal defect, or where the outcome of the case before the Court of Appeal is obviously attributable to negligence or serious error. The European Court of Justice (ECJ) ruled that these procedural requirements did not turn the Swedish Court of Appeal into a court of last resort: "Decisions of a national appellate court which can be challenged by the parties before a supreme court are not decisions of a "court or tribunal of a Member State against whose decisions there is no judicial remedy under national law" within the meaning of [Article 267]. The fact that the supreme court must first rule on the admissibility of such appeals before considering their merits does not deprive the parties of a judicial remedy. Cartesio (Case C-210/06) [2008] ECR I-9641] adopted and applied the ruling in Lyckeskog. Given that its verdicts were final and subject to a "exceptional" appeal to the Hungarian Supreme Court, the case addressed the question of whether the Regional Court of Appeal in Hungary was subject to the third paragraph of Article 267. The Regional Court of Appeal was not subject to the mandatory referral system, the ECJ ruled, because appeals were permitted, albeit under specific conditions.
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