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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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." European Union Law ( EU Law) - ‘Independence’
This standard has led to some significant case law. Many tribunals in England have connections to the government agencies whose decisions they are asked to review. Does this meet the independence requirement? In a case concerning the Austrian legal system, this topic came up. A reference had been made in Köllensperger & Atswanger (Case C-103/97) [1999] ECR I-551 by the Austrian Procurement Office of the Land of Tyrol. The Tyrol government appointed its members, and they were subject to removal "if the conditions for appointment are no longer met or if circumstances emerge which hinder properly exercising the office and are likely to do so for a long time." This "appears prima facie too broad," according to the ECJ, "to guarantee against undue involvement or coercion on the part of the executive." The Court discovered, however, that other Austrian legal provisions—including one that clearly forbids conveying instructions to Procurement Office employees in the course of their duties—provided assurances of independence. The difficulty in ensuring "independence" is demonstrated by two additional situations. The request was accepted in the first instance, Gabalfrisa & Others (2000), but the court rejected the decision in the second instance, Schmid (2002). Cases C-110 to 147/98 involving Gabalfrisa and Others (2000) ECR I–1577 Multiple references from the Catalan Regional Economic/Administrative Court (EAC) were involved in this case. The independence of this court from the tax authorities whose rulings it reviewed was a subject of debate. The Court concluded its ruling by stating that it was satisfied with the way in which Spanish law: "ensures a separation of functions between, on the one hand, the departments of the tax authority responsible for management, clearance, and recovery, and, on the other hand, the [EAC] which rule on complaints lodged against the decisions of those departments without receiving any instruction from the tax authority." Case C-516/99 Schmid [2002] ECR I–4573 This case involves a referral from the Vienna Regional Finance Authority's Appeal Chamber. The Appeal Chamber lacked independence, according to the ECJ, which found the reference inadmissible. The issue was that there were five members of the Appeal Chamber, and two of them also served on the regional tax authority, whose rulings the Chamber was supposed to review. (In fact, the president of the regional tax authority automatically served as the chamber's president.) According to the ECJ's ruling in Schmid, a body that has "an organizational and functional link" with a government agency whose decisions it is asked to review cannot be regarded as an independent "court or tribunal" for the purposes of Article 267. The Court provided in-depth explanations of the "concept of independence" in Wilson (Case C-506/04) [2006] ECR I-8613, as follows: "The idea of independence, which is inherent in the duty of adjudication, entails essentially an authority acting as a third party in regard to the authority which adopted the contested judgment," the court wrote. There are two more facets to the idea. The first aspect, which is external, assumes that the body is shielded from outside interference or pressure that could endanger the members' independence of judgment with regard to the proceedings before them. This fundamental freedom from such outside influences necessitates certain assurances, such as protections against removal from office, that are sufficient to protect the person of those charged with deciding a dispute. The second, internal factor relates to impartiality and works to level the playing field for the parties to the proceedings and their various interests with regard to the case at hand. With the exception of the rigorous implementation of the law, that requirement calls for objectivity and the lack of any stake in the outcome of the proceedings. In order to dispel any reasonable doubt in people's minds regarding the imperviousness of that body to external factors and its neutrality with respect to the interests before it, rules are necessary, particularly as regards the composition of the body and the appointment, length of service, and the grounds for abstention, rejection, and dismissal of its members. European Union Law ( EU Law) - What courts or tribunals mean
There are restrictions on who may submit a ruling request. It can only be done by a "court or tribunal." Court or tribunal has a fairly broad range of interpretations. (The ECJ has interpreted Article 267 itself, after questions presented to it by national courts under Article 267 procedure!) A forum does not always need to be called a "court" or "tribunal." The elements of Dorsch Consult In Dorsch Consult (Case C-54/96) [1997] ECR I-4961, the ECJ issued the following judgment: The Court considers a number of factors, including whether the body is established by law, whether it is permanent, whether its jurisdiction is mandatory, whether its procedure is inter partes, whether it applies the rules of law, and whether it is independent, in order to determine whether a body making a reference is a "court or tribunal," which is a question governed by [Union] law alone. This decision is crucial because it provides what could be called a "functional" standard for determining whether organizations are eligible to use the Article 267 procedure. Practically speaking, this means that more entities can request preliminary judgements than would have been the case had the ECJ taken a "literal" approach, which would have limited its response to petitions from entities that genuinely go by the names "court" or "tribunal." These are the benefits of this "functional" approach: Many organizations that do not go by the names of "court" or "tribunal" yet perform judicial duties, which entail resolving disagreements between parties. The functional approach helps to ensure that these organizations do not have to decide how to interpret EU legislation on their own, which in turn increases the likelihood that the legislation will be applied correctly to resolve the conflicts. The functional approach allows for more bodies to obtain rulings on various EU legal rules, enabling the ECJ to issue clear rulings on unclear EU legal provisions that might not have otherwise even reached the ECJ. In the national legal systems, the functional approach lessens the need for costly and time-consuming appeals. Decisions made by various bodies can frequently be appealed to "courts." Without a practical strategy, these appeals might be made in order to bring a case before a "court" and ask for a preliminary judgement. Any organization that performs judicial duties may request a decision on its own under a functional approach. Broekmeulen (Case 246/80) [1981] ECR 2311 is a nice illustration of the "functional" approach. A doctor's registration as Dr. Broekmeulen has been turned down. He used EU legislation as the foundation for his appeal to the Appeals Committee of the Royal Netherlands Society for the Protection of Medicine. There were several allusions to the ECJ, one of which inquired as to whether the Appeals Committee was a "court or tribunal." The ECJ ruled that the Appeals Committee, which carries out its duties with the approval of the public authorities and operates with their assistance, and whose decisions are accepted after contentious proceedings and are in fact recognized as final, must be deemed to be a court or tribunal for the purposes of [Article 267] in the practical absence of an effective means of redress before the ordinary courts in a matter concerning the application of [Union] law. In the following instances, the broad definition of "court or tribunal" can be seen: Crown of Denmark (Case C-400/93) Administration board in Copenhagen, Denmark; O'Flynn v. Adjudication Officer (Case C-237/94); [1995] ECR I-1275 [1996] ECR I-2617 - Gebhard v. UK Social Security Commissioner (Case C-55/94) Milan Bar Council v. El-Yassini (Case C-416/96) [1995] ECR I-4165 [1999] Immigration judge, UK; Abrahamsson and Andersson (Case C-407/98); ECR I-1209 [2000] Cadbury Schweppes v. Universities Appeals Board of Sweden, ECR I-5539 (Case C-196/04). [2006] Jia (Case C-1/05) v. Special Commissioners of Income Tax, UK, ECR I-7995 [2007] Torresi (Cases C-58 and 59/13) - Alien Appeals Board, Sweden, ECR I-1 National Bar Council, Italy [2015] QB 331; [2015] 2 WLR 29. In El-Yassini (1999), the European Court of Justice (ECJ) carefully considered the issue of whether a UK immigration adjudicator qualified as a "court or tribunal." Finally, it was decided that an adjudicator was indeed qualified. Read the following passage from the ruling and count how many of the Dorsch Consult (1997) criteria are met: 'It should be remembered that the Immigration Act of 1971 established the post of Immigration Adjudicator. The Immigration Adjudicator has the authority under this legislation to hear cases involving foreign nationals' rights to enter and reside on UK soil. Immigration Adjudicators are a permanent organ, too. They must make their decisions in line with the law, in accordance with the 1971 Act, and in accordance with the procedure. The nature of such process is between parties. Immigration Adjudicators must provide justification for their decisions, which are final and can, in some cases, be challenged before the Immigration Appeal Tribunal. The Lord Chancellor appoints Immigration Adjudicators for renewable terms of 10 years or one year, depending on whether they serve full- or part-time. They have the same independence protections while in office as judges have. So, in accordance with [Article 267], the Immigration Adjudicator must be viewed as a court or tribunal. On the other hand, it was determined that an independent arbitrator was not a court in Nordsee (Case 102/81) [1982] ECR 1095. The arbitrator lacked mandatory jurisdiction, which caused this. An arbitration tribunal is not a "court or tribunal of a Member State" within the meaning of [Article 267] where the parties are not required, in law or in fact, to refer their disputes to arbitration and the public authorities of the Member State concerned are not involved in the decision to opt for arbitration and are not required to intervene of their own accord. The European Court of Justice (ECJ) ruled that questions submitted to it by the Italian Public Prosecutor were inadmissible because he did not constitute a "court or tribunal" in Procura Della Republica v. X (Case C-74/95) [1996] ECR I-6609. Additionally, a reference from a body inside the Swedish tax administration was ruled to be inadmissible in Victoria Film A/S (Case C-134/97) [1998] ECR I-7023 (it did not perform a judicial function). The body's work was strictly administrative in nature. If anything, the body worked to avoid conflicts in the first place rather than settling ones that had already occurred. If a court is performing an administrative (as opposed to judicial) duty, it might not even be considered a court. The ECJ determined that the District Court, Bregenz, Austria, was not a "court" when it was operating as a land register in Salzmann (Case C-78/99) [2001] ECR I-4421. Similar to this, the Regional Court, Wels, Austria, was not a "court" when serving as a company's register in Lutz & Others (Case C-182/00) [2002] ECR I-547. ECJ ruling: "A national court may only refer a question to the [ECJ] if it has a case pending before it and if it is required to render judgment in proceedings designed to result in a decision of a judicial type... Even if the other requirements [noted in Dorsch Consult (1997)] are met, the referring authority cannot be viewed as exercising a judicial function when it issues an administrative decision without being obligated to settle a legal dispute. The broad definition of "court or tribunal" has made it possible for a lot more organizations to use the preliminary rulings method. This has clear advantages: it allows the ECJ to explain the law on legislative provisions that could not have otherwise reached the Court; it enables those bodies to apply EU legislation after it has been interpreted by the Court; and it might even decrease the number of national appeals. However, one of the Court's own experts has consistently criticized the Court's policies. Several viewpoints, starting with De Coster (Case C-17/00), have been expressed. [2001] Repeated in Austrian Rundfunk (Case C-195/06) is ECR I-9445. [2003] Most recently, in Umweltanwalt von Kärnten (Case C-205/08), ECR I-4989. [2009] Advocate-General Ruiz-Jarabo Colomer has expressed concern about the ECJ's "too liberal" view of "court or tribunal," which he claims allows administrative authorities outside of the "regular judicial system" to participate in the preliminary judgments process. He has asked the Court to define "court or tribunal" to include only "bodies forming part of the judicial power of every State," with very few exclusions, and to "set down a stronger and more consistent body of norms" on admission. However, the Advocate-counsel General's has (so far) been disregarded by the Court. European Union Law ( EU Law) - Inadmissible references: "Docket control"
Requests for preliminary rulings are infrequently denied by the ECJ. The ECJ is, in theory, required to respond if the issue being addressed is one of interpretation. There are three circumstances, nonetheless, in which requests for preliminary judgements have been ruled to be inadmissible. Contrived argument The ECJ declared in Leur-Bloem (Case C-28/95) [1998] QB 182: "A reference by a national court can only be rejected if it appears that the [Article 267] procedure has been misused and a ruling from the Court elicited by means of a contrived dispute, or it is obvious that [Union] law cannot apply, either directly or indirectly, to the circumstances of the case referred to the Court," according to the rule. In Foglia v. Novello (No 2) (Case 244/80), this circumstance arose. [1981] Case Example: ECR 3045 Case 244/80: Foglia v. Novello (No. 2) [1981] ECR 3045 A number of cases of an Italian liqueur wine were ordered by Ms. Novello, a French national, from an Italian wine dealer named Foglia. The sales agreement stated that Novello would not be responsible for any fees levied by the French or Italian authorities in violation of (Union) law. When the wine entered France, the French Customs officers reportedly levied an illegitimate duty on it. After paying for it, Foglia filed a lawsuit against Ms. Novello to try and recoup the money. The judge in the Italian court asked for a decision on how to read Article 110. The ECJ, however, declined to respond, claiming that the proceedings were "artificial" and had been fabricated by the parties to test the legality of the French tax laws. Although this ruling has drawn criticism, it is acceptable given that there was no actual EU law for the ECJ to rule on. In Meilicke v. Meyer (Case C-89/91) [1992] ECR I-4871, the European Court of Justice (ECJ) followed the precedent set in Foglia v. Novello (1981) by declining to consider a number of questions referred to it by the Hanover Regional Court because they were all related to Professor Meilike's theories regarding EU company law and there was no actual disagreement between the parties. The Court declared that Article 267's goal was to aid in the administration of justice in Member States, not to provide advisory views on broad or speculative issues. Despite arguments to the contrary by an interested observer, the ECJ has agreed that the debate was real in a number of following cases. For instance, the ECJ rejected the Belgian government's argument that a VAT dispute (between a Belgian company and the Belgian tax authorities) was fabricated in Idéal Tourisme (Case C-36/99) [2000] ECR I-6049, concluding that "the documents in the case contain nothing to show that the parties to the main proceedings manifestly colluded to obtain a ruling from the Court by means of an artificial dispute, as was the case in Foglia The documents clearly show that Idéal Tourisme and the Belgian State did not agree to send hypothetical questions to the Court for a preliminary judgement. Instead, it is obvious that the parties differ on a number of crucial points. In Bacardi-Martini v. Newcastle United FC (2003), the ECJ declined to reply to an English High Court's request based on circumstances that were comparable to those in Foglia v. Novello (1981). Newcastle United FC v. Bacardi-Martini (Case C-318/00) [2003] ECR I–905 A contract had been made between Bacardi and NUFC to promote the latter's goods on billboards at NUFC's stadium for a UEFA Cup game between NUFC and Metz in December 1996. However, NUFC backed out of the agreement when it learned that the match will be streamed live in France through satellite because French law forbids the advertising of alcoholic beverages on television. The High Court heard a case in which Bacardi sued NUFC and asked for a decision on how Article 56 should be interpreted (the free movement of services). The ECJ declined to take on the reference, stating that it needed to exercise "particular vigilance" if a court from one Member State requested a reference in order to examine whether the laws of another Member State was in compliance with EU law. Irrelevance The ECJ may reject the request if it relates to elements of EU law that are peripheral to the actual dispute. In BP Supergas v. Greece (Case C-62/93) [1995] ECR I-9883, the ECJ held that a request will be denied if it is "very evident" that the inquiry has "no relevance" to the underlying dispute at hand. insufficient background knowledge of the facts or the law In Telemasicabruzzo (Cases C-320 to 322/90) [1993] ECR I-393, the ECJ rejected a reference because it lacked adequate details regarding the parties' legal disagreement or the factual background. La Pyramide (Case C-378/93) [1994] ECR I-3999 provided confirmation of this, with the ECJ indicating that this would be the case particularly if the factual situation was complex. European Union Law ( EU Law) - references questioning the legitimacy of EU law
When the legality of EU law rather than its interpretation is in doubt, special considerations are required. First, the ECJ cannot decide whether the Treaties are legitimate. Therefore, the only EU legislation that may be contested on grounds of legitimacy is secondary legislation. In contrast to the first point, a national court cannot declare EU law to be invalid (Firma Foto-Frost v. Hauptzollamt Lübeck-Ost (Case 314/85) [1987] ECR 4199). The ECJ has sole jurisdiction in this matter. Therefore, a referral must be made when a national court believes a section of EU secondary legislation may be illegal. R (on the application of British American Tobacco) v Secretary of State for Health (Case C-491/01) [2002] is a nice illustration. ] ECR I–11453 British American Tobacco (on the application of) v. Secretary of State for Health (Case C-491/01) ) [2002 ] ECR I–1145 3 On the basis of Article 114 (Measures to Ensure the Functioning of the Internal Market) and Article 207, the Council had approved Directive 2001/37. (Common Commercial Policy) According to Article 1 of the Directive, its goal was to harmonize the laws, regulations, and administrative rules of the Member States regarding the maximum tar, nicotine, and carbon monoxide yields of cigarettes, as well as the health warnings and other information that must appear on unit packets of tobacco products, along with certain measures regarding the ingredients and descriptions of tobacco products, using a high level of health protection as a foundation. . The UK government's "intention and/or obligation" to transfer the Directive into national legislation was the subject of a judicial review request made in September 2001 by British American Tobacco and Imperial Tobacco. The application was supported by a number of arguments, including an improper legal foundation. The ECJ was consulted on the matter before rendering a decision, and in due course, the Court determined that Article 114 constituted the proper legislative basis and that the Directive was lawful. It was improper to apply Article 207 in addition, although this was only a formal error and had no bearing on the Directive's legality. European Union Law ( EU Law) - The national courts' function
After requesting a preliminary ruling, the national courts are expected to consider it in light of the circumstances of the case and render a decision. However, in the 2003 case of Arsenal FC v. Reed (Case C-206/01) [2003] Ch 454, Laddie J. of the English High Court declined to apply a preliminary judgement of the ECJ that he himself had requested. This case is now considered to be a landmark in legal history. The Arsenal Football Club claimed that Matthew Reed had violated its trademarks by selling scarves and jerseys outside of Highbury Stadium in north London that included the club's shield and cannon insignia. Laddie J had asked for a preliminary judgement about the interpretation of several clauses in Directive 89/104 during the course of the subsequent trademark infringement case. When the decision was made, however, Laddie J ruled that the ECJ had overstepped its interpretative jurisdiction and had reached certain factual conclusions (with which he disagreed) regarding the issue of whether or not Arsenal fans would be likely to mistake Reed's unofficial merchandise for Arsenal's official merchandise. If Laddie J was right, he was quite within his rights to draw this conclusion because, strictly speaking, the ECJ is only intended to render decisions regarding the interpretation of specific provisions of EU law. It was, nevertheless, a contentious choice. The partnership between the ECJ and the High Court avoided a serious crisis, nonetheless. After losing in the High Court, Arsenal FC moved to the Court of Appeal, which overturned Laddie J's ruling and determined that the ECJ had not exceeded its authority. As a result, the Court of Appeal fully applied the preliminary verdict and found in favor of Arsenal. 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. European Union Law ( EU Law) - language barriers
The topic of linguistic differences in EU law has been discussed by the Court on numerous occasions. In Stauder v. Ulm (Case 29/69) [1969] ECR 419, for instance, it was determined that "the necessity for uniform application and accordingly for uniform interpretation makes it impossible to consider one version of... text in isolation but requires that it be interpreted on the basis of both the real intention of its author and the aim he seeks to achieve, in particular in light of the versions in all [the] languages." European Union Law( EU Law) - The method of Interpretation Used by the EU
The ECJ is no different from any other court in the world in having a choice in how it approaches interpretation. There are three primary approaches: Literal. typical dictionary definition favored by English courts but rejected by the ECJ. This approach is unworkable due to the multilingual environment. Contextual. Consider EU law overall rather than simply the specific item of legislation. Purposive. Interpret the law in a way that advances the Union's goals the greatest. Due to the inclusion of a "preamble" outlining the goals and objectives of the legislation, EU legislation (whether primary or secondary) lends itself to this method. The ECJ typically adopts a "teleological" approach, which is a synthesis of the second and third techniques. The following excerpt from Re Adidas AG (Case C-223/98) [1999] ECR I-7081 summarizes the position: "When interpreting a provision of [EU] legislation, it is important to take into account not just the words used, but also the context in which they are used and the goals of the laws they are a part of." Preference must be given to one interpretation when there are multiple ways to read a provision of [EU] law but only one can guarantee that the provision will continue to be effective. The ECJ can modernize the law and respond to new social and political events by employing the teleological method. |
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