Article 267 TFEU, critically consider whether the relationship between the CJEU and national courts created by the preliminary reference procedure is better considered as a bilateral, horizontal partnership of collaboration or one which is a multilateral, vertical, hierarchical relationship in which the CJEU takes precedence.
Introduced as the “jewel in the Crown of the ECJ’s” jurisdiction,1 the preliminary rulings procedure contained within article 267 of the Treaty on the Functioning of the European Union (‘TFEU’) amounts to a fundamental tool to the application of EU law in Member States. The aim of this essay is to critically assess the preliminary rulings / reference procedure conferred under article 267 of the TFEU and conclude whether the scope of the relationship confers excessive powers on the ECJ with particular consideration to how it has changed over time. It is concluded that it cannot be agreed with absolute completeness that the European judicial system has moved from a horizontal bilateral approach to the vertical and multilateral approach. However, a proper consideration demonstrates that the development of matters such as the doctrine of precedent have shifted the matter towards a more vertical and multilateral approach. To a certain extent, the fact that national courts are not compelled to send a matter to the ECJ for a preliminary hearing is largely restrictive of the ECJ’s ambit and this prevents it from rising to a fully vertical position.
Article 267 TFEU
Article 267 provides:
(ex Article 234 TEC)
The Court of Justice of the European Union shall have jurisdiction to
give preliminary rulings concerning:
(a) the interpretation of the Treaties;
(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;
Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.
Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.
If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay.”
It has been stated that the preliminary rulings procedure has two purposes. Firstly, it is designed to ensure or foster the uniform application of European law within Member States.2 A second reason as to why the EU has developed the preliminary rulings procedure is to ensure that Member States and their national courts have a source to turn to in the event that they are unclear as to the manner in which European legislation should be applied.3
As Craig and De Burca explain, the original aim of preliminary rulings and the original structure was in fact a horizontal one in that the ECJ and nationals courts had differing functions in the sense that the national courts could elect when to refer and the ECJ then had to determine the question that was asked – the ECJ was thus not designed as a traditional appellate court and instead worked in collaboration with the national courts of Member States.4 The relationship was deemed bilateral in the sense that it was between the ECJ and the individual court and when a question was asked the answer was to be handed to the individual national court.5 However, it has been argued that the relationship has become one which has gradually transformed into a vertical and multilateral one.6 The learned authors claim that the ECJ has claimed a position at the “apex” of the hierarchy and the national courts are not enforcers as far as the ECJ is concerned.7 Furthermore, the scholars continue to argue that when a question is answered by the ECJ as it currently stands the answer that is provided is one which has “de jure” or “de facto” impacts on the other national courts as opposed to being limited to the referring court.
This paper will proceed to consider several key aspects of the preliminary rulings procedure to analyse whether the relationship has moved from a horizontal bilateral structure to a vertical multilateral one.
The obligation to refer
One valid point that can be made in the context of the supremacy or hierarchical position of the ECJ is in relation to the times at which it can be called upon the provide an answer. To this end, it is has been argued that a great deal of power remains vested in the national courts as they are the ones that decide whether or not a matter should be referred to the ECJ. According to Mancini and Keeling, the ECJ and its jurisdiction is totally dependent on the “goodwill” of national courts to refer cases to it in the event that a question arises.8 This principle was also emphasised by Rasmussen who noted that the ECJ had no power to force a national court to accept its jurisdiction and refer a question.9
The starting position to any consideration in this context must be article 267 itself. In line with this, it is worth noting that the article itself provides that a national court with such a question has a discretion as to whether or not it refers to questions to the ECJ. The only circumstance in which there is a steadfast rule that requires a question to be referred can be found in the context of a court against whose decision there is no national remedy. On the one hand, one could be forgiven for arguing that the obligation to refer is such that the horizontal effect is instead replaced by one which is vertical in nature. It is submitted that, whilst this may be the case, there is a sensible rationale behind it. The ECJ has held that one of the reasons why there is a requirement for the highest and un-appealable courts to refer cases is to prevent that the exhaustion of appeal rights being a reason to develop laws which are contrary to the EU legal system.10
It is submitted that the lack of any requirement to refer a question to the ECJ suggests that the vertical element has not completely replaced the horizontal nature of the preliminary proceedings as such.
However, one factor that should be born in mind is that a Member State cannot avoid the requirement to refer by attempting to claim that the body in question was not a court. It has been held in a number of cases, including Politi,11 that the determination as to whether an entity is a court or tribunal is a decision that is to be made by the ECJ and a classification by the Member State will not alone suffice to determine the duty to refer.
The question that must be asked of a supranational entity like the ECJ is of the consequences of a failure to refer a matter to the ECJ in circumstances where it would appear that there is an obligation to do so. The ECJ has held in the case of Köbler that where a court of last instance misapplies the law of the EU it can be made liable to make good the damages that accrue as a result of its failure.12 This principle has been confirmed explicitly in the context of article 267 in the case of Traghetti.13 On the fact of it, this would suggest that the fear of having to pay damages places pressure on the national courts to comply with the requirements under article 267. However, it is submitted that this may not be the case. It has been argued by Valutyte that this in fact causes a problem.14 What the law in cases like Traghetti and Köbler does is to simply make the Member State liable in monetary terms; there is no requirement that the national court also make the referral and thus it can continue to refuse to refer the question and simply pay the damages. It is considered that this in facts creates a problem in the law whereby individuals can be deprived of access to the ECJ by the simply payment of damages.15 It is further considered that this allows Member States to buy their way out of a proper application of the law.
In light of the above, it is submitted that the requirement to refer a ruling is narrow, and narrowed further by the acte claire doctrine discussed below. As such, there are fundamental doubts which follow about the claim that the ECJ has taken a vertical strength given its reliance on national courts for referrals.
The acte claire doctrine
One further consideration in this case should be the acte claire doctrine. The doctrine itself, as established in the case of CILFIT,16 is the legal principle that where a provision of the law is clear and free of ambiguity there is no requirement for it to be referred to the ECJ. This doctrine has been criticised as suggesting that the discretion that has been garnered by the national courts has led to situations in which the national courts have, arguably wrongly, formed their own view as to how EU law should be applied and have used the acte claire doctrine as a justification for not referring the case to the ECJ.17 Scholars have not been the only ones to criticise the doctrine. In his opinion in the case of Lyckeskog,18 Advocate General Tizzano argued that against a highly subjective test for the acte claire doctrine to be invoked. Significantly, despite the concerns over the acte claire doctrine being too subjective, calls to narrow its scope by including the requirement that the law is obvious to non-judicial actors has before the requirement to make a reference falls away has been disregarded by the ECJ.19
In light of the current discretion that is conferred upon national courts, this author maintains that the acte claire doctrine, at the least, prevents there from being a surge of the ECJ to the very apex of the hierarchy.
However, it can be argued the introduction of precedents to EU case law has worked to elevate the ECJ to a level not before known in a manner than reduces the horizontal and bilateral nature and instead adopts a vertical and multilateral approach.20
The doctrine of precedents was first adopted in the case of Da Casta en Schaake21 in which it was held that there is no need, especially for a court of last instance where there is no national appeal mechanism, to refer a case to the ECJ in circumstances where the ECJ has already decided upon the issues. This case has, in effect, created a doctrine of precedents which means that the answers that are given by the ECJ to one court are binding on the national courts of Member States. The principle of precedents was cemented by the ECJ in the case of International Chemical Corporation v Amministrazione delle Finanze dello Stato22
It is submitted that this move towards precedents is justified. As Raitio notes, the doctrine of precedents in this regard is the proper and efficient way of ensuring that EU law is applied in a uniform manner.23 The alternative option, as Craig and De Burca note,24 is one that does not sit well in reality and would involve the ECJ being compelled to hear each question again, regardless of the fact it had heard it before, only to reach the same conclusion. In such instances, it is considered the doctrine of precedents is thus vital to encouraging efficient and cost-effective decision-making.
The problem, however, may perhaps lie in the scope of the doctrine of precedents. The case law has allowed for a decision to be relied upon despite the fact that it is not derived from the same set of proceedings and also despite the fact that it is not derived from the same type of question.25 On the one hand, it could be argued that this gives national courts the ability to manipulate precedents in order to prevent there being a further referral.
The doctrine of precedents plainly provides the ECJ with a wider ambit and amounts to a shift from the bilateral relationship to a more multilateral one.
Sectoral Devolution of responsibility
The sectoral devolution of responsibility is a further factor that must be considered as part of the consideration of the power and scope of the European judicial system in the context of national courts. As Craig and De Burca note, that devolution in this matter is appropriate in the context that giving certain powers to national courts ensures that enforcement can occur. The point to be noted is that the ECJ may have the kudos and the image to make rulings, but the enforcement element of the decision is best placed with those whom have the resources to carry out such enforcement.26 As such, it is plain that the principle of having European precedents and the ability of the ECJ to devolve such responsibilities is indicative of a power imbalance / shift between the ECJ and the national courts.
The impact of a preliminary ruling
What must be remembered in all these circumstances is that despite the scope of the ECJ to create precedents and other measures which may point to multilateralism and the vertical effect, the truth remains that the ECJ cannot determine the validity of the national law and this, therefore, remains a matter entirely for the national court following the answer having been given. However, in reality, political and social pressure is likely to be placed on national courts to apply the answer.
It should briefly be added that despite the suggestion that the national courts have a discretion as to whether or not they refer a matter to the ECJ, the ECJ has seemingly been put under stress by the number of referrals that are sent to it under article 267.27 As can be inferred from the authors’ words, the policy consideration behind this is not to increase the power of the ECJ but instead to try and reduce the number of referrals that are sent to the ECJ without doing harm to the policy aim of ensuring that EU law is applied in a uniform and consistent manner and indeed this is vital for the purpose of legal certainty.28
Calls for reform
Whilst it falls outside the strict ambit of this paper, a discussion on the transformation of the role of the European judiciary would be incomplete without a consideration of the potential reforms that could come into place. There has been a consideration of the potential of turning the European judiciary into an appellate system.29 However, it is notable that these reforms were proposed in vague terminology30 in 1999 and there appear to have been no substantial talks of such reforms going ahead over a decade on. If, hypothetically speaking, the ECJ were transformed into an appellate court, there is a strong chance that the impact of this would indeed make the ECJ arguably the strongest and most powerful court in the world and amount a full move from the horizontal to a vertical relationship.
The preliminary ruling mechanism conferred under article 267 of the TFEU is a vital mechanism to the uniform application of the law of the European Union. Indeed, without it, national courts would be left to their own devices as far as interpretation is concerned and this could lead to chaos and inconsistency. The mechanism does, on paper, have limitations in the sense that the ECJ is not, for the purposes of article 267, an appellate court and thus cannot rule on the legality of national laws. The role of the ECJ, therefore, was simply intended to be one of interpretation. This mechanism, as it then stood, drew a bilateral and horizontal picture where equality between courts based on their different functions was appreciated and it was regarded that the answer that was given by the ECJ to the requesting court was simply a matter between that individual national court and the ECJ. However, Craig and De Burca have championed the opinion that the ECJ has moved on somewhat from the original bilateral approach that it had adopted and what has instead emerged, by virtue of the case law, is a more multilateral and vertical approach. The significance of this alleged shift is that, if true, it delineates a shift from judicial equality to a shift to power on the part of the ECJ and the extension of the impact of the answers provided as part of the preliminary ruling procedure.
Based on the evidence that has been derived from the case law and commentary and discussed above, it is clear that there has been some shift towards a more multilateral procedure that is vertical in nature, but the shift cannot be considered complete or absolute. It is considered that the national courts still retain some power in the sense of that it is they who have the ability to refer the cases to the ECJ; the ECJ cannot demand that a case be referred and the procedures in place to “compel” a national court to make a reference are somewhat diluted in their impact and thus the power and discretion remains comfortably with national courts. However, the reality would suggest that this finding is limit in practical impact given the high number of referrals that are being made to the ECJ. However, other factors indicate a shift towards the multilateral and vertical model that Craig and De Burca identify. To this end, it is notable that shifts have meant that the introduction of the doctrine of precedents places a wide ambit on the powers of the ECJ in a manner that amounts to devolution of responsibility to national courts.
1 Paul Craig and Gráinne de Búrca, EU Law: Texts, Cases and Materials, (Oxford University Press, 2011), 442.
2 Rheinmühlen-Düsseldorf v Einfuhr- und Vorratsstelle für Getreide und Futtermittel (Case 166/73).
3 Ian Bache et al, Politics in the European Union, (Oxford University Press, 2014), 293.
4 Craig, P. and De Burca, G. op cit, 443.
8 G Federico Mancini and David Keeling, ‘From CILFIT to ERT: the Constitutional Challenge Facing Europe’ (1991) 11 Yearbook of European Law, 1.
9 Hjalte Rasmussen, ‘The European Court’s Acte Claire Strategy in CILFIT’ (1984) 9 European Law Review 242.
10 Case C-393/98 Ministerio Publico and Gomes Valenta v Fazenda Publica  ECR I-1327, paragraphs 17-18.
11 Case 43/71 Politi v Italy  ECR 1039.
12 Case 224/01, Köbler v Austria  ECR I-10239.
13 Case C-173/03 Traghetti del Mediterraneo SpA v Repubblicaitaliana  ECR I- 1209.
14 Regina Valutyte, ‘State Liability for the Infringement of the Obligation to Refer for a Preliminary Ruling under the European Convention on Human Rights’ (2012) 19(1) Jurisprudence 7, 8-9.
15 Ibid, 8.
16 Case 283/81 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health  ECR 3415.
17 Anthony Arnull, ‘The Use and Abuse of Article 177’ (1989) Modern Law Review 622, 626.
18 Case C-99/00 Lyckeskog  ECR I-4839, Opinion of Attorney General Tizzano at I-4841.
19 Case 495/03 Intermodal Transports BV v Staatssecretaris van Financien  ECR I-8151.
20 Craig, P. and De Burca, G. op cit, 456.
21 Cases C-28-30/62 Da Costa en Schaake (163) ECR 31.
22Case C-66/80 International Chemical Corporation v Amministrazione delle Finanze dello Stato  ECR 1191.
23 Juha Raitio, The Principle of Legal Certainty in EC Law, (Springer Science & Business Media, 2003), 88.
24 Craig, P. and De Burca, G. op cit, 449.
25 Case 283/81 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health  ECR 3415.
26 Craig, P. and De Burca, G. op cit, 477.
27 Lorna Woods and Phillips Watson, Steiner and Woods on EU Law, (Oxford University Press, 2014), 245.
29 The Future of the Judicial System of the European Union (Proposals and Reflections) (May 1999).
30 Paul Craig, ‘The Jurisdiction of the Community Courts Reconsidered’ (2001) 36 Texas International Law Journal 555, 576.
Note: The article was written pre-Brexit and hence does not reflect the post-Brexit changes in the UK National Courts.
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