European Union Law ( EU Law) - The prerequisites for state liability
Particularly, Francovich & Bonifaci (1991) were troubled by the Italian government's inability to carry out a Directive. States are required to put Directives into effect, as stated in Article 4(3) TEU and Article 288 TFEU. What the position may be in reference to subsequent violations and the degree of culpability necessary to prove liability, however, remained two unresolved problems. In Brasserie du Pêcheur SA v. Germany and Factortame III (Cases C-46 and 48/93) [1996] ECR I-1029, the ECJ discussed these concerns. The Court made it clear that state liability was a general principle, not just limited to a failure to implement Directives, and that three requirements had to be met: the rule of EU law violated had to have been intended to grant rights to individuals; the violation had to be sufficiently serious; and there had to be a direct causal relationship between the violation of the state's obligation and the harm suffered by the parties who were injured. The claimant has the onus of proving each of the three requirements. Claims involving state liability are handled before the defendant state's national court. Cases C-46 and C-48/93, Brasserie du Pêcheur v. Germany; Factortame III [1996] ECR I–1029 A French brewery named Brasserie filed a test case against the German government in the first instance, requesting compensation for losses it claimed to have experienced as a result of being unable to sell beer in Germany between 1981 and 1987. Following the ruling in Commission v. Germany (Beer Purity) (Case 178/84), the action was taken. [1987] ECR 1227, which held that the Reinheitsgebot of 1516 and more especially the 1952 Biersteuergesetz, Germany's beer purity regulation, violated Article 34 of the Treaty on European Union. The regulation stipulated, among other things, that only malted barley, hops, yeast, and water may be used to make "bottom-fermented" beers. It was said that this hindered beer trade between Germany and France, where somewhat laxer regulations were in effect. The "Anglo-Spanish" fishing fleet, which included Factortame Ltd and a number of other Spanish-owned but British-registered fishing enterprises, filed a lawsuit for damages against the UK government in the second instance. This came after the ECJ determined that the UK's Merchant Shipping Act 1988 violated the firms' directly effective rights under EU law, including their freedom of establishment under Article 49 TFEU, in Factortame II (Case C-221/89) [1991] ECR I-3905. It was claimed that the Act caused the corporations significant damages by preventing them from using their fishing rights in UK territorial seas. The three requirements for establishing state liability were established by the ECJ (set out above). Regarding requirement (1), the Court decided that both Articles 34 and 49 TFEU were meant to grant people rights. According to the Court, whereas condition (3) was solely a matter for the national courts, condition (2) was generally a matter for national courts. National regulations on recovering damages (remoteness, mitigation, etc.) would be used to determine the size of the compensation award (in the event that state guilt was proven). In order to apply the conditions (2) and, the two cases were sent
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European Union Law ( EU Law) - Additional reform ideas
Over the years, a lot of reform ideas for the preliminary judgments process have been offered. These ideas can be divided into two categories: those that aim to lessen the number of requests that reach the ECJ and those that aim to improve or streamline the European Union's judicial capacity for handling these matters. (The General Court's grant of jurisdiction, as already noted, belongs to the latter type.) Group 1 suggestions comprise: limiting the selection of national courts or tribunals that have the authority to request rulings. This could mean eliminating the ability for national courts and tribunals to obtain decisions in "first instance" (for example, magistrates' and county courts and the majority of tribunals in England). Since "first instance" courts rarely ask for references, this would presumably have little practical effect. denying "first tier" appeal courts and tribunals, like the High Court and the Employment Appeal Tribunal (EAT), the ability to request decisions. The number of requests would undoubtedly be significantly reduced as a result of this. According to statistics, the High Court and the EAT provide a significant portion of the preliminary judgements that British courts request. These organizations would be forced to interpret EU law on their own if they lost the ability to request decisions (with the risk of divergent rulings being made). tightening the Dorsch Consult (1997) criteria to exclude inquiries from organizations like "adjudicators" and "appeal boards." removing the requirement for national courts of last resort to refer cases. This has maybe already been accomplished thanks to the acte clair doctrine. Article 267 should be revised to require national judges to take the significance, difficulty, and/or novelty of the proposed judgement into account. Among the ideas in Group 2 is letting the ECJ weed out inquiries. The majority of national courts of last resort have the ability to exclude cases found to be too minor or unoriginal. There are reasons to argue that the ECJ should have the same authority. establishing regionalized tribunals with expertise in EU law, under the supervision of a new "European High Court of Justice" that would replace the ECJ. In the United States, federal courts are organized similarly, with the Supreme Court in Washington, DC, at the top, presiding over the rulings of the different federal "circuit" courts, which in turn supervise the federal courts in the states that make up each "circuit." The academics Jacque and Weiler were the ones who first put forward the latter recommendation: The [ECJ] will continue to be at the top of the system; it may be renamed the European High Court of Justice. We suggest setting up four new Community Regional Courts with the authority to accept preliminary references from national courts in each region and issue preliminary judgements in those cases. A party to the proceedings, as well as the Commission, Council, Parliament, or Member States as interveners, may appeal to the European High Court of Justice when the Regional Court issues its decision or preliminary ruling. On the Road to European Union: A New Judicial Architecture, J. P. Jacque and J. Weiler (1990), 27 CMLR 185 A distinct interpretation of decentralization was put out by the academics Richard Drabble, Justine Thornton, and Veerle Heyvaert. They assert the following, extrapolating from the General Court's 1989 and the Civil Service Tribunal's 2005 foundings: By creating specialized organizations for issues that are normally thought to require a high level of technical specialization and expertise to address, such as trademarks and competition disputes, it would be able to broaden the spectrum even more. Environmental decision-making may fall under the category of a field that requires a specialized court. In order to account for the ongoing increase in procedures filed over time, the creation of additional EU courts or tribunals could at least minimize delays from getting any worse. "With Reference to the Environment: The Preliminary Reference Procedure, Environmental Decisions, and the Domestic Judiciary" by V Heyvaert, J Thornton, and R Drabble (2014) 130 LQR 413 All of these ideas would lighten the ECJ's load and shorten the waiting period, but at what cost? Restricting the authority of national courts to request rulings will undoubtedly result in more appeals in the national courts as disgruntled litigants attempt to bring a case before a national court that has retained the ability to do so. The "cooperation" between the ECJ and the courts and tribunals of the Member States could be jeopardized by filtering. The development of EU legal principles may be hampered, as this could discourage national courts from seeking rulings in situations where they would otherwise do so, potentially resulting in inconsistent interpretations among Member States (important doctrines like direct effect, indirect effect, state liability, and fundamental rights were all developed during preliminary ruling cases). Regionalization jeopardizes consistency, and opening numerous new courts will be expensive in terms of infrastructure, personnel, communications, and IT. There can also be disputes over where any future regional courts should be located. European Union Law ( EU Law) - The Urgent Preliminary Procedure
Preliminary ruling in an emergency A new urgent preliminary rulings method was adopted in March 2008 and is only to be used in rare circumstances. The following is how the Court of Justice outlined the rationale for the new procedure: This process is effective as of 1st March 2008 and should allow the Court to deal with the most delicate issues pertaining to the areas of freedom, security, and justice much more quickly, such as those that may arise, for instance, in specific circumstances where a person is deprived of his liberty and the answer to the question raised is essential to determining the person's legal situation; or in proceedings concerning p By limiting the number of parties eligible to submit written observations, referring all cases involving the areas of freedom, security, and justice to a special chamber of five judges who will decide whether to apply the new procedure and, if they do, will issue their decision shortly thereafter, and using only electronic communication, the new procedure reduces waiting times. In Rinau (case C-195/08 PPU) [2008] ECR I-5271; [2009] 2 WLR 972, the new process was first applied. The Supreme Court of Lithuania requested a preliminary judgement in a custody dispute on April 30, 2008. She shared a home with her mother in Lithuania after her parents had divorced, but her father, who lived in Germany, was suing for custody. The ECJ used the new process, and on July 11—just over 10 weeks later—the decision was made. The Court stated that the need to safeguard Luisa from harm, prevent jeopardizing her connection with her father, and create a "fair balance" between Luisa's interests and those of her parents justified the haste. Santesteban Goicoechea (case C-296/08 PPU) [2008] ECR I-6307) saw an even quicker resolution. A preliminary decision was sought in this case by the Court of Appeal in Montpellier, France, regarding the potential extradition of a Spanish national from France to Spain to answer to criminal allegations. Less than six weeks after the ruling was requested on July 3rd, 2008, the ECJ issued its decision on August 12th. In this case, the haste was appropriate because the subject was being kept in custody in France after serving a prison sentence there and pending his potential extradition to Spain. Although the new process has received positive academic reviews, Koutrakos ('Speeding up the Preliminary Reference Procedure: Fast but not Too Fast' (2008) 33 EL Rev 617) has noted that "there is a balance which must be struck" between delivering judgments as quickly as possible (on the one hand) and giving the ECJ's judges enough time "to reflect on the questions put to them, assess the arguments... and consider the wider ramifications of their conclusio (on the other). According to him, giving a verdict takes time, which is not a "luxury" but rather "an essential prerequisite for the competent administration of justice." European Union Law ( EU Law) - grant of authority to the General Court
In the future, the General Court will get certain preliminary judgments, albeit in "particular areas" and with the potential for ECJ review. Article 256(3) outlines the process: "Article 256(3) The General Court shall have competence to hear and decide questions submitted for a preliminary ruling pursuant to Article 267, in the specified areas prescribed by the Statute. The General Court may refer a case to the Court of Justice for a judgement if it believes that doing so will have an impact on the unity or consistency of Union law. In extraordinary circumstances, when there is a severe risk to the unity or consistency of Union law, decisions made by the General Court on questions referred for a preliminary determination may be subject to review by the Court of Justice, within the terms and restrictions outlined by the Statute. Although it has been in existence since 1989, the General Court has never really dealt with preliminary decisions. The General Court did not have jurisdiction over this matter when it was established. When Article 256(3) was added to what was then the EC Treaty in 2003, that situation altered. The main reason the approach hasn't been implemented yet is because no decision has been made regarding what the "particular areas" should be. There have been many recommendations made, but none have been implemented as of yet (see particularly P Dyrberg, "What Should the Court of Justice be Doing?" (2001) 26 EL Rev 291). There will probably be kinks in the new method until it is fully evolved, assuming the General Court is permitted to begin hearing preliminary judgements at some point. For instance: When a "determination of principle" is involved, the General Court "may" send cases to the ECJ. But what does that mean? Even though the General Court's decisions are only subject to "extraordinary" ECJ review, this weakens the legitimacy of all of those decisions. Can a General Court decision be applied by any national court while a potential review is still pending? Should the European Court of Justice be given a deadline to decide whether to use its review power? There has been a varied, but generally encouraging, response from academia to the General Court receiving preliminary ruling jurisdiction. According to Tridimas, the process strikes a "acceptable compromise between competing demands" between the need for a more streamlined process and the requirement for a consistent application of EU law. In his article "Knocking on Heaven's Door: Fragmentation, Efficiency and Defiance in the Preliminary Reference Procedure" from 2003, 450 CML Rev 9, T. Tridimas argued that the idea of the ECJ and General Court sharing authority over preliminary judgements was "preferable over other changes." The new method was deemed "extremely essential" by another commentator, who also said that it would be best to use this option as soon as possible (B Vesterdorf, "The Community Court System Ten Years from Now and Beyond: Challenges and Possibilities," (2003) 28 EL Rev 303). Heffernan, on the other hand, expressed less optimism, asserting that "there is every reason to expect that [the General Court's] contribution will be limited" (L. Heffernan, "The Community Courts Post-Nice: A European Certiorari Revisited," (2003) 52 ICLQ 907). European Union Law ( EU Law) - Preliminary reference procedure reform
The typical wait time (from a national court or tribunal asking a preliminary ruling until the ruling itself) is roughly 15 months due to the extremely enormous backlog of cases at the ECJ. Despite the fact that the typical case involves a wait of more than a year, national judges may be discouraged from asking questions and instead attempt to answer the questions themselves, endangering both individual rights (if the judges get the answer wrong) and the "cooperation" between national judges, even though the average waiting time has decreased from an all-time high of 25 months in 2003. One point on which academics agree is the necessity for reform in the preliminary reference process. In his article "Remedying the Crumbling EC Judicial System" from 2000, Professor Rasmussen wrote: "It is a broadly held opinion today that the case for a thorough and profound judicial reform has become persuasive." Johnston concurs: "Clearly, there is a major workload problem for the Court, due to a variety of causes," he writes in "Judicial Reform and the Treaty of Nice" (2001) 38 CMLR 499). It is especially important when references for preliminary rulings are involved. The EU's expansion (from six in 1958 to nine in 1973, to ten in 1981 and 12 in 1986, to 15 in 1995 and 25 in 2004, to 27 in 2007 and 28 Member States in 2013), which allowed more courts and tribunals to refer questions, has contributed to the delay, among other reasons. the rise in the number of EU official languages (from four in 1958 to six in 1973, seven in 1981, nine in 1986, eleven in 1995, and now 24) that has occurred along with it. As a result, translating rulings for the ECJ is subject to enormous burdens. the extent to which "court or tribunal" is defined by the ECJ itself in instances like Dorsch Consult. the number and scope of EU secondary legislation, which is constantly expanding. For instance, in 2003, the "Race Directive" (Directive 2000/43) and the "Framework Directive" (Directive 2000/78) both became enforceable. Preliminary judgements have been issued under both Directives, particularly the Framework Directive, over the years and are likely to continue to do so in the future. Preliminary ruling petitions have increased dramatically as a result of the ECJ's development of ideas like basic rights and state accountability, as well as its reliance on the Charter of Fundamental Rights (2000). In contrast, the ECJ's own hesitant efforts to lighten its burden through the 1982 acte clair in CILFIT have had little effect. As can be seen in the chart below, all of this has resulted in a net rise in the number of preliminary references that the Court must handle. Year Number of preliminary references 1961 -1 1971 -37 1981 -108 1991 -186 2001- 237 2011- 423 2016 -470 (an all-time high) European Union Law ( EU Law) - Response of academia to Acte Clair
The notion of acte clair itself has received a mixed response from academics. The general agreement appears to be that the ECJ's support of acte clair in CILFIT (1982) was correct. Regarding the requirements that must be met before national courts can use the concept, opinions are diverse. The CILFIT decision would make it possible for national judges to explain away any hesitation they might have about requesting a preliminary ruling. Only the requirement that the various language versions be compared had any teeth among the considerations that national courts had to make before determining that the meaning of a provision of [Union] legislation was clear. Overall, CILFIT would allow national courts to make their own decisions about [Union] law, to put it briefly. The Use and Abuse of Article 177 EEC, A Arnull (1989), 52 MLR 622 Professor Rasmussen, on the other side, is possibly the CILFIT commentator who is the most harshly critical (1982). Although he agrees with the ECJ's decision to permit national courts of last resort to resolve issues of EU law on their own, he thinks the CILFIT (1982) criteria are so strict that the opinion, as a whole, accomplishes the opposite of what the Court said it meant to do. He stated in a piece from 1984: According to the author, CILFIT indicates something entirely different from what it initially seems to imply. The true approach differs from the one that is initially presented. Not incorporating an acte clair notion into [Union] legislation is the real goal of CILFIT. Its purpose is to caution national judiciaries when they encounter issues with the interpretation and application of [Union] law. The European Court's Acte Clair Strategy in CILFIT (1984), 9 ELR 242 by H. Rasmussen In order to make acte clair more widely accessible, he reiterated his critique in 2000 and urged the ECJ to revise the CILFIT (1982) judgment: The current problems facing the Court of Justice are their own doing. I'm referring to the submission straightjacket that the Court in CILFIT constructed. This decision served as a magnet, pulling a lot of cases to the Court that were frequently unnecessary. The ECJ should modify CILFIT's submission requirements to lessen the requirements that it places on the obligation of national courts to use [Article 267]. "Remedying the Crumbling EC Judicial System" by H. Rasmussen, 2000, 37 CMLR 1071 European Union Law ( EU Law) - Acte clair and British courts
Acte clair was enthusiastically backed by Lord Denning MR in Bulmer v. Bollinger (1974): "The English court may assume the point is pretty obvious and free from question." In that case, the Treaty only needs to be applied, and the English court is responsible for doing so. In a similar vein, Lord Diplock stated in Garland v. BREL [1979] 1 WLR 754 in the House of Lords that a reference would not be necessary when there was a "considerable and consistent line of case law" making the solution "obvious and inescapable." However, Lord Bingham MR in the Court of Appeal stated in Commissioners of Customs & Excise Commissioners v. Samex [1983] 1 All ER 1042 that national courts should be conscious of the distinctions between national and EU legislation, of the pitfalls if they got it wrong, and of the paramount need for uniform interpretation throughout the EU. According to Lord Bingham MR "We understand the proper course of action for a national court (other than a final court of appeal) to be quite clear; if the facts have been established and the [Union] law issue is material to the court's ultimate decision, the appropriate course is typically to refer the issue to the ECJ unless the national court can do so with absolute certainty." The national court must take into account the distinction between national and [EU] law, the challenges that a national court faces when stepping into uncharted territory, the need for consistent interpretation across the [Union], and the significant advantages that the ECJ enjoys when interpreting [EU law]. The acte clair theory is crucial in eliminating time-consuming, pointless demands. It can, however, be abused, as was the case in R v. Chief Constable of Sussex, ex parte International Trader's Ferry Ltd [1998] 3 WLR 1260, where the House of Lords declined to request guidance on the interpretation of the words "measures" and "public policy" in Articles 35 and 36. The ITF case received a negative response from academics: ITF is by no means a perfect example of how the courts have carried out their responsibility to apply [Union] law. Even while it is likely that the outcome is the right one, it is impossible to know for sure. The case has at least three moot points. There is a strong case that a reference should have been made despite the House of Lords' obvious unwillingness to use the preliminary [rulings] procedure to ask the Court of Justice for clarification. Police, Protest, and Free Trade by E. Baker (2000) Black LR 95 The same issue was raised by Erika Szyszczak, who stated that it was "surprising that the House of Lords did not make a [Article 267] reference" in her article "Fundamental Values in the House of Lords" (2000, 25 ELR 443). Abbey National plc v. OFT [2009] UKSC 6; [2009] 3 WLR 1215 is a more recent instance of the UK Supreme Court acting with "palpable reluctance" while using the preliminary rulings procedure, despite being required to do so in Article 267's third paragraph. Even though all five judges agreed that the matter should not be sent to the ECJ, only one—Lord Mance—actually gave the CILFIT requirements any consideration. He came to the conclusion that the chance of the contested clause having a different meaning in other versions of the law was "extremely remote" and that it was unlikely that the ECJ or the courts of the other Member States would disagree with the Supreme Court's interpretation. Lord Walker, on the other hand, merely said, "We should accept the case as acte clair." Although the situation was not acte clair, Lord Phillips argued that it should not be addressed because "it would not be proper." Again, the academic response was unfavorable. The Supreme Court came to a different decision than the High Court judge and the three judges in the Court of Appeal did, according to Paul Davies, who drew attention to this. In Davies' article, "Bank charges in the Supreme Court," published in 2010's 69 CLJ, he referred to the Supreme Court's decision on the acte clair point as "dubious" since "four experienced judges [in the High Court and the Court of Appeal] disagreed with the Supreme Court's interpretation." There are several additional instances where the UK Supreme Court reached a decision without first getting a preliminary ruling and which concerned a disputed topic of EU law. Consider if the Supreme Court acted in conformity with Article 267(3) when you learn about them later. Jivraj v Hashwani [2011] UKSC 40; [2011] 1 WLR 1872; X v Mid-Sussex Citizens Advice Bureau [2012] UKSC 59; [2013] 1 All ER 1038; and North & Others v Dumfries & Galloway Council [2013] UKSC 45. Russell & Others v Transocean International Resources Ltd [2011] UKSC 57 (see Chapter 17); Russell & Others v Transo (all discussed in Chapter 18). Magmatic Ltd v. PMS International [2016] UKSC 12; [2016] 4 is a relatively recent case. The UK Supreme Court determined that the point of EU law at issue in All ER 1027, sometimes known as the "Trunki" case, was acte clair. The UK Supreme Court and the Trunki case: Missed Opportunities, Mysteries, and Misunderstood attracted criticism for not requesting a preliminary ruling, according to Sara Ashby (Ashby, S, "The UK Supreme Court and the Trunki case: Missed Opportunities, Mysteries, and Misunderstood" (2016) 38 EIPR 527). European Union Law( EU Law) - Acte clair, and mandatory references
The correct application of [Union] legislation may be so evident as to leave no room for any reasonable doubt as to how the matter addressed is to be answered, according to the ECJ in CILFIT (1982). A national "court of last resort" would thereafter have the option of declining to use the Article 267 procedure. Acte clair, or "clear act," is a notion derived from French law that refers to a choice not to obtain a ruling because a clause is "so evident as to leave no opportunity for reasonable doubt." However, the ECJ made it very explicit in CILFIT (1982) that acte clair must be employed with extreme caution: The national court or tribunal must be persuaded that the issue is equally evident to the courts of the other Member States and to the Court of Justice before it may conclude that such is the case. The national court or tribunal may choose not to refer the issue to the Court of Justice and assume control over its resolution only if those requirements are met. In the beginning, it is important to keep in mind that diverse language versions of [Union] legislation are equally authentic. Therefore, a comparison of the various language versions is necessary in order to comprehend a provision of [Union] legislation. Even when the various language versions are perfectly consistent with one another, it is important to keep in mind that [Union] law uses terminology specific to it. Furthermore, it must be emphasized that legal terms used in [Union] law and the laws of the individual Member States do not always have the same meanings. Finally, each provision of [Union] legislation must be considered in the context of all other provisions, with due consideration for their goals and the stage of development at the time the provision in question is to be put into practice. In X & Van Dijk (Cases C-72, 197/14) [2016] 1 CMLR 27, the Dutch Supreme Court asked the European Court of Justice (ECJ) whether it was permitted to treat the interpretation of a provision of EU law as acte clair (which it was inclined to do), despite the fact that a lower court had, coincidentally, requested a preliminary ruling on the same provision (albeit in a different case) and did not view the matter as acte According to the ECJ, CILFIT provided the national court of last resort "sole duty" for deciding whether or not EU law was correctly applied in a way that left no room for any conceivable room for debate. Therefore, it followed that the decision about whether the in question piece of EU legislation was acte clair should be made by the national court of last resort "alone" and "independently." The top court of a Member State is permitted to draw the conclusion that the case at hand includes an acte clair based on its consideration of the facts and in accordance with the standards outlined in the judgment in CILFIT, despite the fact that a lower court had asked for a decision. The European Court of Justice (ECJ) reaffirmed that, generally speaking, "the fact that other national courts or tribunals have given contradictory decisions is not a conclusive factor capable of triggering the obligation" set forth in Article 267 in Ferreira da Silva e Brito & Others v. Portugal (Case C-160/14) [2016] 1 CMLR 26. This case was decided on the same day as X & Van Dijk (3). A national court of last resort "may take the view that, even though the lower courts have interpreted a provision of EU law in a particular way, the interpretation that it proposes to give of that provision, which is different from the interpretation espoused by the lower courts, is so obvious that there is no reasonable doubt," the Court continued. However, the ECJ found that under Article 267, the Portuguese Supreme Court ought to have addressed the issue of how to interpret the words "transfer of an undertaking" in Directive 2001/23 to the ECJ in the instance at hand (3). The "conflicting lines of case law at the national level" and "the fact that that idea frequently gives rise to issues of interpretation in the various Member States" were to blame for this. Intermodal Transports (Case C-495/03) [2005] ECR I-8151, where the Court stated that the national court or tribunal must "in particular" be convinced that the other Member States' national courts and the ECJ itself would find the matter "equally obvious," emphasized the instruction not to abuse acte clair. European Union Law(EU Law) - Mandatory references to Previous Rulings
Even though the issue has already been determined, is a preliminary referral required by a national court of final resort? If that were the case, it would result in a lot of "repeat" referrals, which is incredibly ineffective. As a result, the ECJ concluded that national courts of last resort are exempt from having to send matters to them. The European Court of Justice (ECJ) ruled in Da Costa (1963) that "the authority of an interpretation... already provided by the Court may deprive the duty [under the third paragraph of Article 267] of its aim and thereby empty it of its substance." This is particularly true where the question at hand shares a material similarity with one that has already been the subject of a preliminary judgement in a case like it. The ECJ later agreed with this in CILFIT (1982). Even though the questions at issue are not technically identical, the ECJ noted Da Costa and stated that "the same impact... may be generated..." Additionally, Lord Denning stated in Bulmer v. Bollinger (1974): "In some instances, it may be discovered that the [ECJ] has already decided the same issue in another case." In that case, the English court's decision is not required. Without bothering the [ECJ], it can continue with the earlier decision. A recent instance of this can be found in the case of Mirga v. Samin before the UK Supreme Court. UKSC 1; 1 WLR 481; [2016]. Despite being the "court of last resort" in the UK, the Supreme Court decided against requesting a preliminary decision because the ECJ had already addressed the issue in Dano (Case C-333/13) [2015] 1 CMLR 48; [2015] Alimanovic and 1 WLR 2519 (Case C-67/14) [2016] CMLR 1:29; QB:308 (2016. We'll talk about each of these scenarios later. European Union Law ( EU Law) - Mandatory references and hypothetical questions
Although national supreme courts are required to refer questions to the ECJ when they are brought before them, this does not obligate them to do so if the issue is really unrelated to the case. Even if the question is intriguing, it is only hypothetical if it is not crucial to how the case will turn out. The ECJ decided as follows in CILFIT (Case 283/81) [1982] ECR 3415: "National courts or tribunals are not required to refer to the Court of Justice a question concerning the interpretation of [Union] law placed before them if that question is not relevant," that is, if the question's resolution, whatever it may be, cannot in any way influence the case's outcome. |
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