EUROPEAN UNION LAW
W.B. Fisch, Winter 2006
Assignment #14

Ch. 7. THE PRELIMINARY REFERENCE

Art. 234 (ex 177)

• Issues for referral: interpretation of treaty, validity or interpretation of acts of institutions of the Community or the ECB, interpretation of governing statutes of Community bodies established by act of Council, where the statutes so provide

[language slightly revised from original, by Maastricht]

• Who refers: national courts (not parties)
• Lower courts may refer
• Courts of last resort must refer

A. The Reference Procedure (Statute of ECJ, art. 23, 2004 Supp p. 413, as amended by Amsterdam & Nice)

• Referral documentation submitted to ECJ
• Rights to notification and to be heard
• Parties to the nat'l court proceeding
• All MS and Commission
• Council, ECB, Court of Auditors, or Parliament-and-Council, re their acts
• Binding effect: referring court directly; future courts facing identical question, indirectly
• Future MS court can simply apply the ruling without further reference, if its meaning is clear
• ECJ Rules (Rule 104(3)) allow ECJ to decide (after hearing parties) with simple reference to prior ruling, if questions presented are essentially identical

B. Framing the Reference and the Ruling

• PRETORE DI SALO V. PERSONS UNKNOWN, p. 360 (1987):
• When is a reference premature?
• when is a question too vague to answer?
• Must the Court answer the questions exactly as submitted?
• Foglia v. Novello (II), p. 363 (1981)
• Can the Court render advisory opinions or decide "test cases"?
• Is there a difference between a “test case” and a “put-up case”? (cf. eds. Question p. 365 3d full para., concerning Costa!)
• If so, which is involved in Foglia?
• How does it know when that is what is being requested?
• Must the referring court make its reasons for referring clear?
• Must the ECJ always defer to the MS court's judgment in referring?
• What was it about this case that the Court didn't like? Simply that the validity of the French tax would be decided in an Italian court? Cf. Bacardi-Martini, Supp p 116 (2003): what precisely is the issue in that case?
• What is the MS court supposed to do now?
• How would a proper case for referral have been created?

C. What is an Article 177 "Court or Tribunal"?

• Is an Italian investigating magistrate in criminal cases a judge who decides disputes?
• Does an administrator conducting a review of lower-level decisions qualify?
• Should a limit be placed on the level of court entitled to refer (e.g., appellate only)?
• How does AG Ruiz-Jarabo Colomer propose to reform the Court’s jurisprudence on this question (de Coster, Supp pp 116 ff
• NORDSEE DEUTSCHE HOCHSEEFISCHEREI, p. 368 (1982)
• Does a private arbitration qualify? If not, why not?
• Does the German arbitration law transform the procedure into a public one?