ARTICLE 267 PRELIMINARY REFERENCE PROCEDURE

ARTICLE 29 TEU provides that the function of the ECJ is to ENSURE

THAT IN THE INTERPRETATION AND APPLICATION OF THE
TREATIES THE LAW IS OBSERVED.
JURISDICTION:
ARTICLE 267 1(A): INTERPRETATION OF THE TREATIES
A 267 1(B): VALIDITY AND INTERPRETATION OF THE
INSTITUTIONS, BODIES, OFFICES OR AGENCIES OF THE
UNION
ECJ has unparalleled jurisdiction in deciding matters of EU law, but the
procedure laid out in ARTICLE 267 will only be exercised if a national court
refers an issue for interpretation ECJ HAS NO POWER TO COMPEL A
NATIONAL COURT TO MAKE A REFERENCE.
NOT AN APPEALS SYSTEM
IN THE CASE OF AN APPEAL, THE INITIATIVE LIES WITH THE
PARTIES. THE COURT HAS NO SAY.
THE APPEAL COURT CAN DECIDE THE CASE, ALBEIT ON
PERHAPS MORE LIMITED GROUNDS, AND HAS THE POWER
TO SET ASIDE AN INFERIOR COURTS DECISION. THIS IS NOT
FOUND IN THE ART 267 PROCEDURE - HARTLEY
As HOFFMAN notes, the objective of the reference system is to:
RETAIN THE INDEPENDENCE OF THE NATIONAL COURTS,
WHILE AT THE SAME TIME PREVENTING A BODY OF
NATIONAL CASE LAW NOT IN ACCORD WITH THE RULES OF
UNION LAW FROM COMING INTO EXISTENCE HOFFMAN
LA ROCHE.
WHERE SUCH A QUESTION IS RAISED BEFORE ANY COURT OR
TRIBUNAL, THAT COURT MAY REQUEST A REULING, IF IT
CONSIDERS IT NECESSARY IN ORDER TO MAKE A JUDGMENT.
THE COURT MUST MAKE A REFERENCE IF THERE IS NO JUDICIAL
REMEDY UNDER NATIONAL LAW
THE MEANING OF COURTS AND TRIBUNALS
POLLARD AND ROSS NOTE: IN PRACTICE, THIS
REQUIREMENT HAS CAUSED LITTLE DIFFICULTY AND THE
COURT HAS RECEIVED REQUESTS FOR PRELIMINARY
RULINGS FROM A WIDE VARIETY OF JUDICIAL BODIES.
A COURT OR TRIBUNAL IS NOT TO BE DETERMINED WITH
REFERENCE TO NATIONAL LAW CORBIAU V ADMISTRATION
DES CONTRABUTIONS IT MUST BE REMEMBERED THAT THE
EXPRESSION "COURT OR TRIBUNAL" IS A CONCEPT OF
COMMUNITY LAW, WHICH, BY ITS VERY NATURE, CAN ONLY
MEAN AN AUTHORITY ACTING AS A THIRD PARTY IN RELATION
TO THE AUTHORITY WHICH ADOPTED THE DECISION
FORMING THE SUBJECT-MATTER OF THE PROCEEDINGS.
DORSCH CONSULT V BUNDESBAUGESELLSCHAFT IN
ORDER TO DETERMINE WHETHER A BODY MAKING A
REFERENCE IS A COURT OR TRIBUNAL FOR THE PURPOSES

OF ARTICLE 177 OF THE TREATY, WHICH IS A QUESTION

GOVERNED BY COMMUNITY LAW ALONE, THE COURT TAKES
ACCOUNT OF A NUMBER OF FACTORS, SUCH AS WHETHER
THE BODY IS ESTABLISHED BY LAW, WHETHER IT IS
PERMANENT, WHETHER ITS JURISDICTION IS COMPULSORY,
WHETHER ITS PROCEDURE IS INTER PARTES, WHETHER IT
APPLIES RULES OF LAW AND WHETHER IT IS INDEPENDENT
BROEKMUELEN BODIES THAT PERFORM DUTIES WITHT
THE APPROVAL OF AUTHORITIES AND OPERATES WITH THEIR
ASSISTANCE, AND WHOSE DECISIONS ARE ACCEPTED
FOLLOWING CONTENTIOUS PROCEEDINGS AND ARE IN FACT
RECOGNISED AS FINAL, MUST BE DEEMED TO BE A COURT OF
A MEMBER-STATE FOR THE PURPOSE OF THE TREATY.
NORDSEE - AN ARBITRATOR OR ARBITRAL BODY IS NOT A
COURT OR TRIBUNAL AS IT IS "CHOSEN IN PREFERENCE TO
RECOURSE TO THE ORDINARY COURTS" THAT IS, IT IS NOT OF
A COMPULSORY JURISDICTION AND THERE IS NO
INVOLVEMENT BY THE PUBLIC AUTHORITIES IN THE
ARBITRATION.
CILFIT
o NO NEED TO REFER WHEN A RULING MAKE NO
DIFFERENCE TO THE OUTCOME OF THE DISPUTE
o NO NEED TO REFER WHEN THE ANSWER IS SO
OBIVIOUS AS TO LEAVE NO QUESTION THE
DOCTRINE OF ACTE CLAIR
BULMER V BOLLINGER ONLY THOSE COURTS WHOSE
DECISIONS ARE NEVER SUBJECT TO AN APPEAL CAN MAKE A
REFERENCE LORD DENNING (OBITER) NOT BINDING BUT
HIGHLY INFLUENCIAL ABSTRACT THEORY
FLAMINCO COSTA V ENEL IF NOT GRANTED LEAVE TO
APPEAL OR JUDICIAL REVIEW, MATTER SHOULD BE
REFERED ABSTRACT THEORY
MANDATORY V DISCRETIONARY JURISDICTION