Article 267 Preliminary Reference Procedure

1. Introduction

One of the core principles responsible for application of the preliminary rulings procedure is to ensure the uniform and consistent interpretation of EU law because the CJEU has been able to use this procedure to remain the final interpreter of the EU law. Federico Mancini has described the preliminary ruling as the keystone of the EU legal system. Article 267 Preliminary Reference procedure has ensured the integration of the EU Law with the legal systems of the Member States to a degree, but not completely. With CJEU being the final authority on interpretation of the EU law, and consistent application by member states has ensured the integration of the EU law with Member States. If you require assistance with your law dissertation, then consider seeking law dissertation help so that you can navigate complex legal topics very effectively.

Article 267 and integration

Article 267 contains the preliminary ruling procedure which also facilitates the interaction of the national courts with the CJEU, and this is one of the ways in which integration of the EU law has taken place through Article 267. To first briefly understand the scope of Article 267, national courts are required to make a preliminary reference under mandatory jurisdiction; furthermore, permissive jurisdiction may be applied by national courts to make such reference. The doctrines of direct effect and supremacy of EU law are also applicable to make the integration process more effective as will be discussed in this essay. Furthermore, there has also been an application of the law to allow individuals to approach the national courts. It would also be useful to note that the preliminary rulings procedure was also developed to make the EU law harmonised and integrated within the EU Member States. To also briefly discuss the nature of jurisdiction in Article 267, there is mandatory and permissive jurisdiction that is provided. Permissive jurisdiction under Article 267 allows any national court or tribunal to refer a matter to ECJ if it involves a question relating to the EU law relating to which there is some doubt as to the meaning or scope and the court thinks that interpretation of the EU provision necessary to enable it to give judgment. The mandatory jurisdiction is applicable under Article 267 (3) where the national court or tribunal is mandated to refer a matter to the CJEU if there is any question related to the interpretation of EU law where there is no appeal against the decision of that national court or tribunal. To summarise, the national court may refer the question to the CJEU if there is some doubt to the meaning of the EU law and it is necessary to clear that through the CJEU, but must refer the matter where there is no appeal from the decision of the national court where such matter is placed.

1. Susan Schmidt, “Who cares about nationality? The path-dependent case law of the ECJ from goods to citizens” in Susanne K Schmidt and Daniel Kelemen (eds.), The Power of the European Court of Justice (Routledge 2014) p. 8.
2. Fredrico Mancini, ‘The Constitutional Challenges Facing the European Court of Justice’ in F Mancini (ed.), Democracy and Constitutionalism in the EU: Collected Essays (Bloomsbury Publishing 2000) p.18.
3. Susan Schmidt, ‘Who cares about nationality? The path-dependent case law of the ECJ from goods to citizens’ in S K Schmidt and D Kelemen (eds.), The Power of the European Court of Justice (Routledge 2014) p.8.
4. Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1.
5. Von Colson v Land Nordrhein-Westfalen (1984) Case 14/83.
6. Costa v Enel (1964) Case 6/64.

The question is how far this procedure is responsible for integration of the EU Law with the legal systems; it can be said that the mandatory mechanism in particular is responsible for such integration. One of the aspects to this is that the case referred by the national court once decided by the CJEU has retroactive effect, and also sets a precedent. This leads to the integration of the EU law with the law of the Member States because the rulings of CJEU are precedents and binding. In this context, it is also important to consider that the CJEU rulings have been applied as law by the courts of the different Member States as well who would have otherwise interpreted EU law in a varied manner had there not been the preliminary procedure to guide the national courts to refer the matters to the CJEU when it required some interpretation on EU law principles. The preliminary reference procedure establishes the CJEU as the last court for interpretation of the EU law, which allows uniform and consistent application of the law.

It has been stated that the case law of the CJEU suggests that “the courts of the Member States are acting as decentralised European courts.” In this regard, Article 267 plays a role (and consequently leads to integration) because the basis of the national procedures are to be eventually supported in the proceedings for preliminary references. In the example of national procedures, what this means is that national procedures are affected because procedural autonomy of the Member States is subject to the principles elaborated by the CJEU. Thus, in the area of civil procedure, harmonisation is seen due to the implementation of the CJEU jurisdiction under preliminary reference procedure which allows national courts to refer doubtful interpretative provisions to the CJEU, whose decision then becomes applicable as precedent for all courts. It may also be mentioned that because Member States are required to fully implement EU law, read with the Article 267 preliminary reference, this just goes to create a structure within which the uniform interpretation by the CJEU is done to lead to the integration and harmonisation of the law.

1. Peterbroeck, Van Campenhout & CeSCS v. Belgium, Case C-312/93 [1995] E.C.R. 1-4599.
2. Alec Stone Sweet and Thomas Brunell, ‘The European Court of Justice, state noncompliance, and the politics of override’ (2012) 106 (1) American Political Science Review 204.
3. Kühne & Heitz NV v Produktschap voor Pluimvee en Eieren (2004) C-453/00.
4. Da Costa en Schaake NV, Jacob Meijer NV, Hoechst-Holland NV v Netherlands Inland Revenue Administration (1963) ECR 1 30/62.
5. M Broberg and N Fenger, Preliminary References to the European Court of Justice (Oxford University Press 2014) 230.
6. Burkhard Hess, ‘Procedural harmonisation in a European context’ in Civil litigation in a Globalising World (TMC Asser Press 2012) 164.
7. Ibid

The reason why there is still some degree of non integration is due to the gaps in Article 267 which allows the national courts to not refer the matter even when the matter may come under the mandatory mechanism. One of the problems with the mandatory mechanism is that there are cases where the courts do not refer the matter even when they can be the last court of appeal; for example, in the UK, the Court of Appeal may effectively be the final court of appeal even though there is a Supreme Court because the latter may not hear the appeal from the Court of Appeal. There is a counter balance to this in the form of liability in damages for failure to refer under 267(3). Thus, it may be argued that the mandatory jurisdiction remains effective to ensure that the national courts and tribunals would refer the matter to the CJEU. However, the liability of the state does not arise merely because it failed to refer the matter to the CJEU, because what is required is that there is a standard of arbitrariness in how the national courts fail to refer the matter.

There is also a gap in that the courts may consider that there is no obligation to refer the matter because the question is irrelevant or even under the acte clair doctrine. Thus, the national court can use the acte clair doctrine to argue that the application of the EU law is obvious to other national courts; both these conditions lead to a situation where the mandatory jurisdiction becomes discretionary. It can be argued that this compromises the effective integration of the EU law because even though there is a preliminary reference process which is meant to integrate the EU law, this is not a completely effective process. What can be said is that the process, even with the mandatory jurisdiction is not always effective to make the courts in a nation refer the matter to the CJEU. Under the acte clair doctrine, the courts are at liberty to decide whether or not to make references.

1. Ibid.
2. Case C-224/01, Kobler v Austria (2003).
3. Gerhard Köbler v. Republik Österreich [2003] ECR I-10239.
4. Regina Valutytė, ‘State Liability for the Infringement of the Obligation to refer for a Preliminary Ruling under the European Convention on Human Rights’ (2012) 19 (1) Jurisprudencija 7.
5. Cilfit and Others [1982] ECR 3415.
6. Agne Limante, ‘Recent Developments in the Acte Clair Case Law of the EU Court of Justice: Towards a more Flexible Approach’ (2016) 54 (6) Journal of Common Market Studies 1384.

Conclusion

Article 267 has been instrumental in integrating the EU law to a degree because of the role played by the CJEU as the final interpreter of the EU law and the decisions then becoming precedent in value. However, because there are still allowances for states to not refer the matter, to some degree integration may still be incomplete.

Table of cases

Cilfit and Others [1982] ECR 3415.

Costa v Enel (1964) Case 6/64.

Da Costa en Schaake NV, Jacob Meijer NV, Hoechst-Holland NV v Netherlands Inland Revenue Administration (1963) ECR 1 30/62.

Kobler v Austria (2003) C-224/01.

Gerhard Köbler v. Republik Österreich [2003] ECR I-10239.

Kühne & Heitz NV v Produktschap voor Pluimvee en Eieren (2004) C-453/00.

Pedro IV Servicios [2009] ECR I-2437.

Peterbroeck, Van Campenhout & CeSCS v. Belgium, Case C-312/93 [1995] E.C.R. 1-4599.

Von Colson v Land Nordrhein-Westfalen (1984) Case 14/83.

Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1.

Books

Broberg M and N Fenger, Preliminary References to the European Court of Justice (Oxford University Press 2014).

Hess B, ‘Procedural harmonisation in a European context’ in Civil litigation in a Globalising World (TMC Asser Press 2012).

Mancini F, ‘The Constitutional Challenges Facing the European Court of Justice’ in F Mancini (ed.), Democracy and Constitutionalism in the EU: Collected Essays (Bloomsbury Publishing 2000).

Schmidt S, “Who cares about nationality? The path-dependent case law of the ECJ from goods to citizens” in Susanne K Schmidt and Daniel Kelemen (eds.), The Power of the European Court of Justice (Routledge 2014).

Schmidt S, ‘Who cares about nationality? The path-dependent case law of the ECJ from goods to citizens’ in S K Schmidt and D Kelemen (eds.), The Power of the European Court of Justice (Routledge 2014).

Journals

Limante A, ‘Recent Developments in the Acte Clair Case Law of the EU Court of Justice: Towards a more Flexible Approach’ (2016) 54 (6) Journal of Common Market Studies 1384.

Sweet AS and Thomas Brunell, ‘The European Court of Justice, state noncompliance, and the politics of override’ (2012) 106 (1) American Political Science Review 204.

Valutytė R, ‘State Liability for the Infringement of the Obligation to refer for a Preliminary Ruling under the European Convention on Human Rights’ (2012) 19 (1) Jurisprudencija 7.

2. Introduction

1. Pedro IV Servicios [2009] ECR I-2437.

This essay provides advise to the German, Italian and French Governments of the legality of their legislation under Article 34 TFEU. Applying the law and legal principles under Article 34, there is discussion on how the actions of the three governments may be assessed. Generally, the question that is common to all three situations is whether the measures are MEQR, as described by Dassonville, or quantitative restrictions as applied in Geddo. Being a broad definition, MEQR is any measure that can have the effect of hindering intra-community trade in the EU.

(a) Germany

The issue is whether the immediate ban on the import of tanning beds is breach of Article 34 of TFEU. The issue becomes relevant because the German Government has placed no restriction on the production or on the use of tanning beds of German manufacturers and the ban is justified on the basis of consumer protection. It is established that these are in the nature of quantitative restrictions.

The term quantitative restriction has been explained in Geddo, as measures that can be said to amount to a total or partial restraint of imports, exports or goods in transit. Generally, it the principle of free movement of goods has been interpreted by the CJEU in a broad sense. This decisions in Dassonville and Cassis de Dijon are relevant to this point and go to establish that the scope of national autonomy is restricted with regard to impeding the free movement of goods. However, there are some areas or conditions under which this can be done.

Quantitative restrictions are not permitted if in breach of Article 34 unless justified under Article 36. Article 34 obliges the Member States to respect the principles of non-discrimination and of mutual recognition of products that are lawfully manufactured and marketed in other Member States. The exact provision is that “quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.” In Dassonville, all trading rules of the Member States capable of obstructing intra EU trade were held to be measures at par with quantitative restrictions and this was further developed in Cassis. In Cassis, the court held that products which are manufactured and marketed in Member States must be allowed to be sold in other Member States. The definition of quantitative restriction in Geddo, may appear to be a broad interpretation encompassing a number of circumstances. However, this seems aligned with the general principle of Article 34 which is to bar measures that prevent or discriminatorily restrict market access for the Member States. Therefore, Article 34 does restrict Member States’ ability to regulate their markets. Furthermore, Regulation EC No. 764/2008 also prevents member states from hindering trade of other Member State. Furthermore, Article 36 is applicable to assess whether the restriction is proportionate and does not constitute arbitrary discrimination or is not disguised trade restriction.

1. Case 8/74 Procureur du Roi v. Dassonville [1974] ECR 837.
2. Case 2/73 Riseria Luigi Geddo v Ente Nazionale Risi [1973].
3. Case 2/73 Riseria Luigi Geddo v Ente Nazionale Risi [1973].
4. LW Gormley, ‘Free movement of goods and EU legislation in the Court of Justice’ in The Judiciary, the Legislature and the EU Internal Market (Cambridge University Press 2012).
5. Article 34 of TFEU.
6. Case 8/74 Procureur du Roi v. Dassonville [1974] ECR 837.
7. C 120/78 Cassis de Dijon [1979].

In Keck, the court explained the discrimination test, which is to be applied where there is a restriction made in the national law on trade, and which provides that if the law applies to all traders in the same manner and affects them all in the same way, then these selling arrangements do not fall within the scope of Article 34. In Italy Trailers, scrutinising of market access as breach of Article 34 was considered and it was observed that a measure of the Member State is first required to pass the Keck test and then the market access test. Keck test failure is an automatic breach of Article 34. In Ker-Optika, the market access test was applied by the court to prohibit the restriction on sale of lenses online under a national law.

In this situation, medical investigations have suggested a link between the use of artificial tanning beds and skin cancer. The German government has made a policy to prevent imports of tanning beds, but has not prevented the domestic manufacturers from making tanning beds. Therefore, there is an application of restriction that applies in a discriminatory manner to foreign traders while it does not have the similar impact for national traders. As such, it is failing the Keck test of discrimination. This will also not be saved by Article 36 conditions.

Germany is advised that its national law is in breach of Article 34 of TFEU based on the case law discussed above.

1. Case 2/73 Riseria Luigi Geddo v Ente Nazionale Risi [1973].
2. Joined Cases C-267/91 and C-268/91, Criminal Proceedings against Bernard Keck and Daniel Mitouard, ECR 1993, p I-06097.
3. C -110/05 Commission v. Italy (Trailers) [2009] ECR I-519
4. Case C-108/09, Ker-Optika bt v ÀNTSZ Dél- dunántúli Regionális Intézete [2010] ECR I-12213.

(b) Italy

The issue in this situation is whether the Italian law banning all artificial tanning beds is in breach of Article 34. This is not a quantitative restriction or an MEQR but it needs to be notified.

The Keck test provides that the measure should not discriminate between traders and that if there is a rule then it should be applied to all traders in the same manner and affect them in the same way. In other words, the Keck principle allows certain selling arrangements if these pass the discrimination test, that is equal application to the measures in fact and law. The market access test becomes applicable when the measures may pass the Keck test. This was explained in Italy Trailers, and there are four kinds of measures that can be in breach of Article 34 even if these pass the discrimination test: distinctly applicable measures, indistinctly applicable measures, indistinctly applicable product requirements, and product use rules. The access test is applicable where the measure prohibits or restricts the goods from Member States from entering into the market. In this context, it may be mentioned that even where the measures are not explicitly differentiating between domestic and other goods, they may be implicitly doing so when the access test becomes applicable.

In case the Member State makes measures that are restrictive, there is a possibility of justifying these measures because Article 36 of the TFEU allows measures justified by general, non-economic considerations, which include public policy and public health provided that such measures have the direct effect on the public interest to be protected as per the principle of proportionality. In Cassis, it was held that Member States may make exceptions to the prohibition of measures having an equivalent effect on the basis of mandatory requirements relating to, inter alia, public health. Thus, even if there are some restrictions but these are related to public health and come within the mandatory exceptions briefly outlined in Cassis, including public health, the exception will allow the national measure. Such measures however, have to be notified to the Commission as per Regulation (EC) No 764/2008. This was passed to discourage Member States from hindering trade so that if a Member State decides to taken an exception on the grounds listed in Article 36 or Cassis mandatory requirements, then this must be done by way of written notice to the importer and the Commissioner. Breach of notification requirements where the measures contain technical regulation, can amount to making such regulations unenforceable against individuals. Therefore, where there is a technical regulation, the obligation to notify is made out and the breach of the same can lead to unenforceability of such regulations.

1. Joined Cases C-267/91 and C-268/91, Criminal Proceedings against Bernard Keck and Daniel Mitouard, ECR 1993, p I-06097.
2. C -110/05 Commission v. Italy (Trailers) [2009] ECR I-519
3. Lynndon Groff, ‘Discrimination Disguised: The Market Access Test of Article 34 TFEU’ (2014), accessed < https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2539268>
4. C-315/92 Clinique [1994] ECR 317.
5. C 120/78 Cassis de Dijon [1979].
6. I Lianos, ‘In Memoriam Keck: The Reformation of EU Law on the Free Movement of Goods’ (2015) 40(2) EL Rev 225.

In this situation, the Italian Government has introduced a law that all artificial tanning beds whether manufactured in Italy or imported from elsewhere in the EU should be subject to inspection for testing of the strength of the ultra violet rays to see if they exceed the level identified as potentially dangerous in the German research and sought to justify this on the basis of public health. Applying the principles discussed above, as the same law is made applicable to both domestic and other traders, Keck test is passed and there is no discrimination in this situation. Article 34 is not breached under market access test because there is no implicit distinction drawn between domestic and other traders. Furthermore, the exceptions under Cassis, read with Article 36 can be used to justify this measure for public health. However, as this contains some technical regulations related to the inspection for testing of the strength of the ultra violet rays, it is required to be notified to the Commission.

The Italian government is advised to notify the measures to the Commission as national exemption measures. This is not an MEQR but needs notification.

(c) France

The issue in this situation is whether the legislation of the French Government is in breach of Article 34. The legislation requires temporary closure of all tanning bed retail facilities whether for sales of the products or for on-site use, licence for operations after staff have been fully trained and certificated in the use and dangers of tanning beds, and requirement that staff should inform potential purchasers and users of tanning beds of their potential dangers. This is possibly an MEQR.

MEQR was described in Dassonville, as “All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-community trade” The barriers that are placed by France are in the nature of non tariff barriers. Such barriers come within the scope of Article 34 unless justified by Article 36. The Sunday Trading cases can be referred to here where the Court held that the restriction of trading on Sunday amounted to breach of Article 34. Restrictions have to be justified and can be justified if these serve a legitimate aim and are applied in a proportionate manner. Aims are legitimate if they are Treaty aims (Article 36) or are within the scope of ‘rule of reason’. Thus public health is a legitimate aim under Article 36.

1. Paul Craig and Gráinne De Búrca, EU law: text, cases, and materials (Oxford: Oxford University Press 2011).
2. C-194/94 CIA Security v Signalson and Securitel (1996).

However, this is further subject to the potentiality test. Potentiality can be questioned on the basis of the costs that the traders would have to bear and can come within the market access test category of partial product use restrictions or other burdens; the case of Alfa Vita, can be considered here where Greece introduced a new law requiring all bakeries to have an operating license which could be granted only if the bakeries complied with premises criteria, but as many Greek supermarkets that did not have their own bakeries and bought frozen dough, the law was held to be a breach of Article 34 because it would inhibit sale of bakery products by imposing unreasonable costs on supermarkets without bakeries. Furthermore, is this justified by necessity test, which goes to assess whether the same object can be achieved through other less restrictive means. This can be applied strictly by the court.

A question is raised as to whether the requirements serve a general interest. In Gebhard, the CJEU applied the 'rule of reason’ that justifies a restriction when it is non-discriminatory, in general interest, suitable for the objective it pursues, and proportionate to the objective. In Cassis de Dijon, the question as to whether the German technical standards of requirement of minimum amount of alcohol in a specific beverage serve the general interest was decided in the negative with the court holding that no such general interest is served by the requirements. In effect, the test of general interest can lead to the restriction on national legislation where the Member States may not be able to impose standards that suit their national interest but does not suit the general interest.

1. Case 8/74 Procureur du Roi v. Dassonville [1974] ECR 837.
2. C-145/88 Torfaen Borough Council v B & Q PLC [1989].
3. C 120/78 Cassis de Dijon [1979].
4. Case C-188/04, Alfa Vita v. Elliniko Dimosio and Nomarchiaki Aftodioikisi Ioanninon [2006] E.C.R. I-8135.
5. Case C-385/99, Muller-Faure [2003] ECR I-4509.
6. Ibid.
7. Case C-55/ 94, Reinhard Gebhard v Consiglio dell'Ordine degli Avvocati e Procuratori di Milano [1995] ECRI-4165.
8. Case 120/78, Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein [1979].

In this case, the legislation targets both sales of the products or for on-site use, and this may be challenged by the former category traders because they are not liable to train their staff in the use of the same and such training may involve an unnecessary expense for them. The temporary closure can be challenged on the ground of market access test.

France is advised that the legislation may be in breach of Article 34 as an MEQR.

Table of cases

Alfa Vita v. Elliniko Dimosio and Nomarchiaki Aftodioikisi Ioanninon [2006] E.C.R. I-8135.

Cassis de Dijon [1979] C 120/78

CIA Security v Signalson and Securitel (1996) C-194/94.

Clinique [1994] ECR 317.

Commission v. Italy (Trailers) [2009] ECR I-519

Criminal Proceedings against Bernard Keck and Daniel Mitouard, ECR 1993, p I-06097.

Ker-Optika bt v ÀNTSZ Dél- dunántúli Regionális Intézete [2010] ECR I-12213.

Muller-Faure [2003] ECR I-4509.

Procureur du Roi v. Dassonville [1974] ECR 837.

Reinhard Gebhard v Consiglio dell'Ordine degli Avvocati e Procuratori di Milano [1995] ECRI-4165.

Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein [1979] Case 120/78.

Riseria Luigi Geddo v Ente Nazionale Risi [1973] Case 2/73.

Torfaen Borough Council v B & Q PLC [1989] C-145/88.

Books

Craig P and Gráinne De Búrca, EU law: text, cases, and materials (Oxford: Oxford University Press 2011).

de Vries S, Ulf Bernitz and Stephen Weatherill, The Protection of Fundamental Rights in the EU After Lisbon (Hart Publishing 2013).

Gormley L. W, ‘Free movement of goods and EU legislation in the Court of Justice’ in The Judiciary, the Legislature and the EU Internal Market (Cambridge University Press 2012).

Journals

Lianos I, ‘In Memoriam Keck: The Reformation of EU Law on the Free Movement of Goods’ (2015) 40(2) EL Rev 225.

Websites

Groff L, ‘Discrimination Disguised: The Market Access Test of Article 34 TFEU’ (2014), accessed < https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2539268>

1. Sybe de Vries, Ulf Bernitz and Stephen Weatherill, The Protection of Fundamental Rights in the EU After Lisbon (Hart Publishing 2013).

Continue your journey with our comprehensive guide to Article 263 TFEU and Direct Access to EU Judicial Review.