The Preliminary Ruling Procedure: Revisiting the Basics. Rajko Knez

Transcription

1 The Preliminary Ruling Procedure: Revisiting the Basics Rajko Knez

2 Introduction & content The PRP (Art TFEU) as a jewel of the crown main characteristics The objects and the role of the PRP Different PRPs and when certain procedure applies Types of Union law being suitable for the PRP A development of a notion Court in Tribunal How and when to ask National consequences in case of a lack of the PRP and beyond

3 Annual Report CJEU, 2015

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6 Purposes of the PRP 6 uniform interpretation of the Union law (legal safety); compliance of secondary Union law with primary Union law question of the validity; decentralized system of judicial remedies (especially in private law remedies) a huge contribution to the development of the Union law: for the EU substantial law; for the relation among national legal systems and EU legal system at the one hand and with international legal system on the other hand; almost all principles were developed by CJEU in PRP (Van Gend 26/62; Costa/ENEL 6/64; Francovich C-6,9/90, etc); the concept of direct effect, direct applicability, consistent interpretation, state liability etc the EU law get the foundations for the existence and effectiveness a huge importance for the individual and its indirect access to the court - locus standi in direct access is very limited (Royal Scholten-Honig, 103/77).

7 Different PRPs and diff. speeds of the procedures Types of Preliminary Ruling procedure Ordinary (267 TFEU, Art. 93 Rules of Procedure) Urgent (Art. 107 RoP) Expedited (Art. 105 RoP) Simplified (Decision by reasoned order without taking further steps in the proceedings, Art & Reply by reasoned order, Art. 99 RoP) Procedure without AG(Art. 20 Statute of the CJEU) Impact of effectiveness of the procedures speed several procedural possibilities to end the procedure fast, but

8 Annual Report CJEU, 2015

9 Types of EU law suitable for PRP Treaties (TEU, TFEU) International agreements EU Charter of Fundamental Rights of the European Union Secondary Law (Directives, Regulations, Decisions ) To certain extent soft law Provisions of Union law to which national law refers Sometimes case of purely national maters is not allowed/sometimes it is it is the question of the applicability (ratione materiae) of the act in question

10 Notion court and tribunal? THE EXPRESSION COURT OR TRIBUNAL MAY IN CERTAIN CIRCUMSTANCES INCLUDE BODIES OTHER THAN ORDINARY COURTS OF LAW: The court/tribunal Vaassen criteria (61/65): it is established by law, it is permanent, its jurisdiction is compulsory and its decision also, it has an inter partes (contentious) procedure, it applies rules of law, and it is independent It performs judicial activity. But not all of them are applied verbatim all the time(ag v Coster, C-17/00). C-689/13, Puligienica Facility Esco SpA (PFE) N.B. te idea of Vassen criteria is to assure judicial decision and to enable, that way, PRP

11 About asking? This is a true question which makes judges busy National judge shall asses the relevance of the question (refer or not to refer special issue presented by judge Dr. Dettmers) The content of the question (Art. 94 RoP) The question shall reflect in the decision, which will settle the dispute at national court The relevance of the question shall be clearly visible from the decision of national court to refer, and the irrelevance from the judgement of the national court When? Lord Denning M.R. put that simply:»the judge must have got to the stage when he says to himself:»this clause of the Treaty is capable of two or more meanings. If it means this, I give judgment for the plaintiff. If it means that, I give judgement for the defendant«. In short, the point must be such that, whichever way the point is decided, it is conclusive of the case. Nothing more remains but to give judgement.«

12 How to ask? Main emphasis: Scope of the EU law No interpretation of national law No application of the EU law Nothing that refers to questionable res facti No question on compatibility of national rules with Union law usually, questions start with shall Art. X of (EU law) be interpreted But there is no form; there is a wide range of situations in which PR is necessary and uniform approach is not possible Question shall be formulated by having in mind the reference back to the national court

13 And the reply of the CJEU This is also an issue how to define the question(s): This is fully task of national court not the parties (C-316/10, Danske Svineproducenter) SEU v Costa v E.N.E.L.: iura novit curia is not a rule at the CJEU CJEU often

14 Impacts of: Complexity of res facti, complexity of legal qualification Clear formulations of the referring courts (questions being too complex formulated) Impacts of the opinions of the EU Commission and intervenient Politically sensitive questions (like case Grogan, C-333/13 Dano) the CJEU between Scylla and Charybdis A change of the EU rule If we would like to avoid reformulation of questions, the approach would need to be much more formalistic and that could mean (since iura novit curia is not a rule) more responsibility on the referring court

15 The duty to request PRP The courts of the last resort and ( in Costa, 6/64) other courts against which there is no remedy There are certain exceptions from must (case C.I.L.F.I.T. from 1982): the mere fact that there is a question of an interpretation does not mean that PRP is always necessary at the courts of the last resort even those courts has certain discretion if the question is not relevant Identical or similar question acte clair acte éclairé Preater legem: The question of validity: obiter dictum decision already in case E.N.E.L., and then in Foto Frost, Gaston Schul every court must, immediately.

16 Remedies in case of missing PRP National based private law remedies A regular appeal also constitutional complaint (it is up to national legal system, reason: competence, only CJEU is competent to interpret EU law) State liability (from Frankovich, Köbler to case C-168/15, Milena Tomášová) National based public law remedies Basically, none EU and international based - private law remedies PRP via national private law remedies ECHR and Art. 6 EU and international based - public law remedies Theoretically, Commission via Art. 258

17 ECtHR can deal with PR references Similarly also in Schipani v Italy, ECtHR,

18 Take home message PRP is a developing legal institute (legislatively, acts of the CJEU alone, CJEU jurisprudence also ECtHR) The development in the last decade: More types of the PRP procedure More effectiveness (question of speed) in the PRPs Still expressing trust to referring courts how and when to ask A duty to state reasons is emphasized by the ECtHR, but this might also trigger more questions