Preliminary Reference Procedure (EU)
Procedure is given under Article 267 TFEU.
Any national court can refer an issue of interpretation of EU law to Court of
Justice of EU. Only highest courts in nation have duty to refer, rest have
discretion. Any court MUST refer an issue if it refers to validity of EU act –
314/85 Firma Foto Frost.
‘Acte Clair’ doctrine:
Highest court ‘against whose decisions there is no judicial remedy under
national law’ shall refer, unless…
1. ‘materially identical’ to matter already decided (acte eclaire)
2. Answer is so obvious as to leave no scope for any reasonable doubt (acte
clair) 283/81 CILFIT
3. But, only if the matter is equally obvious to the courts of the other
member states and the court of justice CLIFIT paragraph 16
Lord Denning in Bulmer v Bollinger:
1. The facts should be decided first, so the question of whether the
reference is ‘necessary’ can be settled,
2. The difficulty or importance of the question,
3. The wishes of the parties could be considered, although it was for the
courts to decide whether to make a reference, and,
4. The need to avoid overloading the CJEU
Procedure is given under Article 267 TFEU.
Any national court can refer an issue of interpretation of EU law to Court of
Justice of EU. Only highest courts in nation have duty to refer, rest have
discretion. Any court MUST refer an issue if it refers to validity of EU act –
314/85 Firma Foto Frost.
‘Acte Clair’ doctrine:
Highest court ‘against whose decisions there is no judicial remedy under
national law’ shall refer, unless…
1. ‘materially identical’ to matter already decided (acte eclaire)
2. Answer is so obvious as to leave no scope for any reasonable doubt (acte
clair) 283/81 CILFIT
3. But, only if the matter is equally obvious to the courts of the other
member states and the court of justice CLIFIT paragraph 16
Lord Denning in Bulmer v Bollinger:
1. The facts should be decided first, so the question of whether the
reference is ‘necessary’ can be settled,
2. The difficulty or importance of the question,
3. The wishes of the parties could be considered, although it was for the
courts to decide whether to make a reference, and,
4. The need to avoid overloading the CJEU
