EJP Answer Structures
National Procedural Autonomy
I. Does a specific procedural rule exist in EU law?
a. Yes – use that
b. No – MS’s institutional and procedural autonomy
II. Limits to this autonomy → derived from principle of sincere cooperation (“Rewe principles”)
a. Equivalence
b. Effectiveness
III. Justifications for limitations to Rewe principles?
a. Rights of the defence, legal certainty, proper conduct of the proceedings
Preliminary Reference Procedure
I. Art. 267 TFEU
a. Scope
i. Art. 267(2) = any court or tribunal of a MS can make references
ii. Art. 267(1)(a) and (b) = about interpretation of the Treaties; or interpretation and
validity of EU legal acts of the institutions, bodies, offices or agencies of the
Union
1. NOT ABOUT INTERPRETATION OF NATIONAL LAW
II. Cycle/steps
a. Step 1: National court
i. Compiles and assesses the relevant facts and legal framework of the case
ii. Assessment whether sending preliminary reference is ‘necessary to enable it to
give judgment’ (Art. 267(2))
b. Step 2: Court of Justice
i. Answers t questions of the national court through guidance on the interpretation
of EU law
ii. About validity of an EU act? → decided whether act is invalid or not
c. Step 3: National court again
, i. Applies guidance from Court on the interpretation of EU law to the case before it
III. Option or obligation to refer?
a. Option
i. National judge can always refer when they consider it necessary
ii. National judge must always be authorized to send a preliminary reference
iii. ‘necessary to enable [the national court] to give judgment’
1. Hypotheticals not considered necessary – will not be answered (Foglia)
2. For national court to determine need for preliminary ruling; question will
only be refused if it’s obvious that the interpretation of EU law sought
has no relevance to actual facts or purpose, or where the problem is
hypothetical, or the Court doesn’t have the factual/legal material
necessary to give a useful answer to the questions (SERGO and Horvath,
para 42-43)
b. Obligation
i. National courts whose judgment there is no national judicial remedy (Apex
courts)
ii. Exceptions (C.I.L.F.I.T.)
1. Irrelevant → have no bearing for the final decision
2. Acte éclairé → already been clarified by the CJEU
3. Acte clair → clear, but no jurisprudence, but so obvious the
interpretation that there can be no reasonable doubt on how to apply this
norm
a. What makes an act unclaire?
i. Obligation of national courts to review different
language versions and jurisprudence of other courts
(Consorzio Italian Management)
iii. Deliberately high threshold
iv. Failure to refer preliminary reference (procedure embedded in a multi-levelled
legal system of judicial protection)
1. Violation of EU law
2. Violation of Art. 6 ECHR (Dhahbi; Georgiou v Greece)
3. Violations of national (constitutional safeguards) ensuring right to right
to a fair trial
IV. Effects of preliminary rulings
National Procedural Autonomy
I. Does a specific procedural rule exist in EU law?
a. Yes – use that
b. No – MS’s institutional and procedural autonomy
II. Limits to this autonomy → derived from principle of sincere cooperation (“Rewe principles”)
a. Equivalence
b. Effectiveness
III. Justifications for limitations to Rewe principles?
a. Rights of the defence, legal certainty, proper conduct of the proceedings
Preliminary Reference Procedure
I. Art. 267 TFEU
a. Scope
i. Art. 267(2) = any court or tribunal of a MS can make references
ii. Art. 267(1)(a) and (b) = about interpretation of the Treaties; or interpretation and
validity of EU legal acts of the institutions, bodies, offices or agencies of the
Union
1. NOT ABOUT INTERPRETATION OF NATIONAL LAW
II. Cycle/steps
a. Step 1: National court
i. Compiles and assesses the relevant facts and legal framework of the case
ii. Assessment whether sending preliminary reference is ‘necessary to enable it to
give judgment’ (Art. 267(2))
b. Step 2: Court of Justice
i. Answers t questions of the national court through guidance on the interpretation
of EU law
ii. About validity of an EU act? → decided whether act is invalid or not
c. Step 3: National court again
, i. Applies guidance from Court on the interpretation of EU law to the case before it
III. Option or obligation to refer?
a. Option
i. National judge can always refer when they consider it necessary
ii. National judge must always be authorized to send a preliminary reference
iii. ‘necessary to enable [the national court] to give judgment’
1. Hypotheticals not considered necessary – will not be answered (Foglia)
2. For national court to determine need for preliminary ruling; question will
only be refused if it’s obvious that the interpretation of EU law sought
has no relevance to actual facts or purpose, or where the problem is
hypothetical, or the Court doesn’t have the factual/legal material
necessary to give a useful answer to the questions (SERGO and Horvath,
para 42-43)
b. Obligation
i. National courts whose judgment there is no national judicial remedy (Apex
courts)
ii. Exceptions (C.I.L.F.I.T.)
1. Irrelevant → have no bearing for the final decision
2. Acte éclairé → already been clarified by the CJEU
3. Acte clair → clear, but no jurisprudence, but so obvious the
interpretation that there can be no reasonable doubt on how to apply this
norm
a. What makes an act unclaire?
i. Obligation of national courts to review different
language versions and jurisprudence of other courts
(Consorzio Italian Management)
iii. Deliberately high threshold
iv. Failure to refer preliminary reference (procedure embedded in a multi-levelled
legal system of judicial protection)
1. Violation of EU law
2. Violation of Art. 6 ECHR (Dhahbi; Georgiou v Greece)
3. Violations of national (constitutional safeguards) ensuring right to right
to a fair trial
IV. Effects of preliminary rulings
