EUROPEAN UNION LAW
W.B. Fisch, Winter 2006
Assignment #15

[Ch. 7.  THE PRELIMINARY REFERENCE]

D.  Discretionary and Mandatory References

· What courts are required to make a reference?

o Only those designated generally as courts of last resort (the highest courts in the hierarchy), or

o That court which has the last say in the particular case?

· Why do you suppose the ECJ itself has had so little occasion to rule on this point?

· Does Lyckeskog, Supp pp 118-9, answer the question, and if so is it the right one?

o What are the essential policy questions underlying this issue?

§ Assurance of effective and uniform application of Community law within a given system?

§ Protection of the ECJ from excessive and/or premature references?

o Does the Swedish system as described in the note provide adequate protect to those interests?

§ Does it help to know that the two grounds on which the Supreme Court is supposed to declare an appeal admissible are

· When it is important for guidance in the [uniform] application of the law that the Supreme Court examine the appeal, or

· When there is special reason for examination, such as grounds for appeal on a point of law, formal defect, or manifest error

§ And/or that (although it hasn’t actually done so) there is no barrier to the Supreme Court’s referring a question of EC law in the context of deciding whether or not to declare admissibility?

§ And/or that only about 4% of requests for a declaration of admissibility are granted?

E.  When Should a Court Refer a Question?

· H.P. Bulmer Ltd. v. J. Bollinger S.a., p. 371 (Engl. C.A. 1974): UK standards for UK courts

o If the only avenue of appeal from the Court of Appeals is through a discretionary leave to appeal to the House of Lords, can the CA be obliged to make a referral?

o Must the issue referred be dispositive of the entire case?

o If the ECJ has previously ruled on substantially the same issue:

§ May the MS court simply apply the previous ruling without referral?

§ May the MS court refer the issue anyway?

o If the MS court decides that the EC law is clear on the point, may it simply decide without referral?

o cf. International Stock Exchange, p. 376 (1992)

· Srl CILFIT V. MINISTRY OF HEALTH (I), p. 377 (ECJ 1982): EC standards!

o As a matter of Community law, may an MS court simply apply ECJ precedent without referring?

o What does it take for a point of Community law to be so clear as not to require referral, even where referral is otherwise either appropriate or required?

§ Is it enough that the MS court itself be confident of its interpretation?

§ If not, what else is required?

o Does the ECJ’s view of this differ from that of Lord Denning in Bulmer?

F.  The Appealability of Preliminary References and Refusals to Refer

· Does Community law preclude appeal, with the MS system, of a lower court’s decision to refer?

· If a lower court’s referral is appealed, and the higher court reverses or vacates the order of referral, is the ECJ precluded from proceeding on the referral?

· If a lower court’s referral is appealed, but the appeal does not automatically suspend the referral order as a matter of MS law, must the ECJ proceed?

· Does Community law preclude a lower court’s being foreclosed from reference under MS rules?

o Where a higher MS court has ruled (without reference) on the point of Community law at issue, and res judicata or “law of the case” applies?

o As a result of other MS rule purporting to preclude reference?

· When is provisional relief appropriate, pending the ECJ’s preliminary ruling?