European Law
The preliminary ruling procedure in U.E.
Abstract
This paper will focus on the relevant jurisprudence of the Court of Justice and, in particular, the challenges that the preliminary ruling procedure has posed to the national courts.
The procedure has been introduced for
- the interpretation of treaties and
- the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union,
but has soon become a crucial instrument to uniform the interpretation of legislation in all Europe.
However, it has received critics because has been used by the parties to obtain a kaleidoscope of results.
1. Introduction
2. The right to refer case
3. Drafting the reference
4. Relevance
5.The principle of 'Acte clair'
6. Enforceability by individual
7. Brexit
8. Conclusion
1 . Introduction
Lord Denning once has said, quoted the case of Bulmer versus Bollinger:
“Any rights or obligations created by the Treaty are to be given legal effect in England without more ado. Any remedies or procedures provided by the Treaty are to be made available here without being open to question. In future, in transactions which cross the frontiers, we must no longer speak or think of English law as something on its own. We must speak and think of Community law, of Community rights and obligations, and we must give effect to them”.
Just recently, the procedure has been used in regard of a Poland case to determine if the newly constituted judiciary chamber, within the power to discipline judges for their conduct and the content of their rulings, has the independent criteria required to be qualifies as Court.
The case was brought by three Polish judges who questioned the independence of the new disciplinary chamber, whose members are chosen by the National Judicial Council.
The Commission, in a connected case, has also considers that Polish legislation is lowering the retirement age of judges of the Supreme Court, and has granted the President of Poland discretion to extend their mandate is contrary to EU law.
The Eu could sanction Poland if not makes changes at the legislation in question.
Back to our topic, the way to let the preliminary ruling become effective has been very long and full of controversial point, the most relevant has been:
- The right to refer case
- drafting the reference
- Relevance
- the principle of ‘Acte Claire’
- Enforceability by individual
- Brexit,
preliminarily, it is necessary to analyse the procedure, such as dictated by the art. 267.
Art. 267 Consolidated version of the Treaty on the Functioning of the European Union (T.F.E.U.) dictates the preliminary ruling procedure.
The procedure is made for obtaining uniformity in the interpretation of EU law in all the Member States prescribing a procedure of co-operation between national courts and the Court of Justice, also known as preliminary reference procedure.
The procedure has no equivalent in most Member States, apart from Poland.
In detail, the purpose of Article 267 is to give to the Court of Justice the jurisdiction to express an opinion, ruling, on questions raised in front of the National courts about the interpretation of EU law.
The Court has no jurisdiction to consider the annulment of the contested measures or declare them inapplicable. Instead, for national courts is mandatory to apply the Court's ruling to the facts for what was asked for the Court’s opinion.
In practice, as Lord Denning underlines since the introduction of the treaty, EU law is applicable among the citizen in such a way that we can consider horizontal.
The process of preliminary ruling mechanism is seen by the Court as the ultimate manifestation of the relationship of cooperation between the national courts and the Court of Justice and as reflection of their role as equal partners in the development of EU law.
Even more, Courts can avoid referring in cases where the application of European law appear clear at first instance: the so-called principle of 'Acte Claire'.
2. The right to refer case
Only National Courts and Tribunal can request to refer a matter, whether or not the parties to the main proceeding have expressed the wish to refer the facts to the Court.
What seem very clear, has been a controversial point since the introduction of the treaty.
The English courts have made declarations on this topic, in particular the divisional court has stated:’… in the ordinary way justice should exercise considerable caution before referring even after they have heard all the evidence. If they come to a wrong decision on community law, a higher court can make the reference and frequently the higher court would be the more suitable forum to do so. The higher Court is a rule in a better position to assess whether court can make the reference is desirable. On references the form of the question to assess the appropriateness of the question and to assist in formulating it clearly. Leaving it to the higher court will often also avoid delay’
However, lower courts remain entirely at liberty to bring a matter before the Court of Justice if they consider it appropriate to do so.
The European Court has also considered essential an early reference in ‘Commissioners of Customs & Exercise V Samex ApS’ in which has concluded that an ‘early reference’ is quicker and cheaper than going up to the appeal later.
Recently instead, the question has been not anymore if higher or lower courts have the right to refer, but what qualifies a court or tribunal.
The Court has developed during an impressive line of case-law what is the essential requirement, finding it on judicial independence.
Furthermore, it has clarified that the independence of national courts and tribunals is essential to the proper working of the judicial cooperation system.
This means that the mechanism may be activated only by a body responsible for applying EU law, which satisfies, among other things, the criterion of independence.
Finally, the advocate general Hogan has clarified the concept of independence in the case C-274/14 Banco Santander:
‘in particular, that the body concerned exercises its judicial functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever, and that it is thus protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions …’
However, considering the independence the most critical factor, the Courts takes account of some other factors to determine whether a body referring is a ‘court or tribunal’ for Article 267 TFEU, such as:
- whether the body is established by law,
- whether it is permanent
- whether its jurisdiction is compulsory
- whether it applies rules of law
- whether it is independent.
In conclusion on the point we can affirm that now the court has developed a clear understanding of what could be define a ‘court or tribunal’ and what is not.
Accordingly in the recent Santander case (2020)the European Court has held that the request for a preliminary ruling from the T.E.A.C. is inadmissible, because that body cannot be described as a ‘court or tribunal’ for the purposes of Article 267 T.F.E.U.
3. Drafting the reference
Drafting is of extreme importance, and references must be as clear as possible. Relevant files of the case must be attached, referring courts must prove that they need the assistance of the Court of Justice to render a judgment in domestic case
Instead, the Court of Justice in drafting its preliminary rulings will try to establish concordance with previous decisions, either in preliminary proceedings or in direct actions. This has significant parallels with other European Country but is not similar to the Anglo-Saxon doctrine of stare decisis, under which previous decisions are binding.
On the point, the speech presented to the court by Mr M. Lagrange advocate general clarified the Court approach:’ in this system it is to be expected that the Court should sometimes have to give a decision on questions of interpretation of the Treaty or Community regulations, which it may already have settled before, but for the reasons which I have given I do not think that this risk will be very great. However that may be, it is infinitely less serious to have several judgments of the Court reproducing previous judgments than to be faced with refusals to accept references from national courts, refusals based on a perhaps questionable interpretation of the scope of a previous judgment which would be the source of conflicts for which the Treaty provides no solution’.
In conclusion the Court of justice does not consider itself bound by its own previous preliminary ruling pronounce. However, as far as possible, it seeks to ensure a uniform interpretation of Community law.
4. Relevance
National Court has to determine the relevance of the questions referred to. If a question is not relevant, or extremely clear, a reference will not be necessary. The subject of the reference must deal with the interpretation or validity of the law.
For the Court of Justice is not always easy determine if a preliminary ruling request is admissible or not.
In those case the Court of Justice requests clarification from the High Court concerning the relevance of the questions referred for the resolution of the main dispute, sometimes also questioning the governments for seeking further information concerning the factual and legal background, in order to control on the admissibility of such reference.
The European system of justice in fact does not allow a national Court to decide whether the legislation of another Member State is or not in accordance with Community law.
In those circumstance the Court retains for itself a certain power of review the assessments made by national courts which may lead it, and often declare a reference inadmissible
In particular, it has repeatedly held that it cannot give a preliminary ruling on a question submitted by a national court where it is quite obvious that the ruling sought by that court on the interpretation or validity of Community law has no relation to the actual facts of the main action or its purpose, [or] where the problem is hypothetical
In that context, the Court has excluded its own jurisdiction where 'the provision of Community law referred to the Court for interpretation was manifestly incapable of applying'.
This is a crucial point to understand that the European Court in the proceeding of the preliminary ruling is empowered by the national courts, as well quoted by judge G.F. Mancini, in Democracy & Constitutionalism in the European Union (2000):
’the TFEU does not empower the Court to review Member state laws. It provides, however, for a machinery which, although overtly conceived for a different function… has been utilised by the court in such way as to enable it to monitor national laws for incompatibility with the Treaty and with secondary legislation.’.
5.The principle of 'Acte clair
The ‘act clair’ principle has been the most important step to develop uniformity of view in Eu, reducing the time used to conclude a process.
However, the perimeter of his application has required some adjustments. In fact, on the one hand, the national court would like to maintain their power, and on the other hand, the Court of Justice has tried to offer more assistance to minimise the discrepancy.
In C.I.L.F.I.T. case, the Court of Justice tried to explain what an ‘acte clair’ situation should mean in detail, by formulating certain general criteria.
The preliminary reference submitted by the Italian Corte Suprema di Cassazione, posed the question of the necessity of the preliminary ruling when a proper interpretation of E.U. rules before it was so evident that there was no genuine need to request an interpretation of the C.J.E.U..
The C.J.E.U. take the opportunity and held that the correct application of E.U. law might be so obvious to a national court that it leaves no scope for any reasonable doubt regarding how the question raised is to be resolved.
Before it comes to such a conclusion, stated the C.J.E.U., the national Court or tribunal must be convinced that the matter is equally obvious to the Courts of other Member States and to the Court of Justice.
The C.J.E.U. further added criteria upon which ‘of non-referral’ must be assessed on the basis of characteristic features of E.U. law, the particular difficulties to which its interpretation gives riseand the risks of divergences in judicial decisions within the EU.
The Court also stressed that the interpretation of a E.U. provision needs to consider different language versions and the peculiarities of E.U. law terminology, taking into account its objectives and the state of evolution.
Only if those conditions are satisfied, stated the Court, may the national courts take upon themself the responsibility for resolving it.
Such clarifications did not appear helpful in practice. The ‘acte clair’doctrine formulated in C.I.L.F.I.T. was often criticised by academics and by the advocates general.
In most cases, it is impossible for a national court to fulfil all the C.I.L.F.I.T. conditions ‘stricto sensu’ due to their broad and insufficiently defined terms.
The fact that national judges must not only consult the C.J.E.U.’s jurisprudence and the vast doctrine and case law of 27 EU Member States but also to engage in linguistic comparisons, there are now 24 official languages in the E.U. of E.U. texts and national legislation.
In conclusion, till now there are cases related to ‘acte clair’ in which C.J.E.U. limited itself to reminding the national courts of the basic C.I.L.F.I.T. rule, and to the other hand cases where the Court concluded that there were absolutely no possibility of adopting the C.I.L.F.I.T. approach.
Ultimately, the Court has clarified the concept in Ferreira da Silva introducing a flexible approach. Contrary to what established in C.I.L.I.F.I.T., by establishing that the interpretation of E.U. law made by a lower court does not in itself prevent a superior Court, acting in revision, and invoking ‘acte clair’.
6.Enforceability by individual
The inter alia effect created the perception, among the European citizen, that the decision makes in Brussels has meaning among the 27 States.
The principle was first stated in the Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 00001, which was the result of a preliminary ruling.
It establishes the doctrine of direct effect: provided certain criteria are satisfied, an E.U. provision may give rise to a right which is enforceable by individuals in the national courts. Provisions with this attribute can produce their effects without restrictions, even in face of conflicting national law.
The rule in question must be sufficiently clear and complete not to require measures to be taken in implementation of it.
Direct effect inter alia raised concern among the European courts because was at first instance saw as an affirmation of the supremacy of European Law.
Although there is a close link between direct effect and supremacy, the latter was not affirmed by the C.J.E.U. until Case 6/64 Flaminio Costa v ENEL [1964] ECR 585, also the result of a preliminary ruling.
What we can affirm is an effect utile of the application, among other things of the European legislation, when the precise condition is present, is now well accepted by the member states at the international level. They should be prepared to translate those duties into daily practice, using judicial and other elements.
7. Brexit
In U.K., the principle of direct effect and supremacy of EU law has been affirmed for more than ten years. The first case was the Factortame litigation.
Since then, the House of Lords accepted that national courts in the U.K. should treat E.U. law as a higher normative. Also, confirmed that the U.K. could be liable by U.K. courts to pay damages to those who suffered loss from Parliament’s enactment of an E.U. law incompatible statute.
With Brexit, the scenario has changed, and the relations that never was comfortable is now interrupted. The withdrawal agreement has now tucked place, and the European legislation and procedure would take distance accordingly.
Distance not complete recession, preliminary ruling still applies till the end of transition.
U.K. will no longer have judges into the Court of European Justice.
After the end of transition, U.K. will lose the right to send the reference to the European Court of Justice within the exception of the case related to the free movement of a person and the power of E.U. citizens as disciplined into the withdrawal agreement.
All the reference send to Brussel before midnight of the last day of the transition period, will maintain the same jurisdiction also if resolved afterward. Even more, U.K. could be subject to U.E. law in any case related to the Withdrawal agreement.
8. Conclusion
In Conclusion, on the preliminary ruling we embrace the envision had by Lord Sylynn of Hadley in his celebrated Hamlyb Lecture, that the Art. 267 preliminary ruling procedure ‘has created a remarkable relationship of comity between national courts and the Court of justice’ , Cooperation at both levels, national and community, is the key to the proper enforcement of Community law for the benefit of the individual. This key has functioned well in UK practice. That procedure of art. 234 is not without its problem is well known, particularly in relation to the time which it takes to obtain a ruling, but the community and its citizen would be infinitely worse off without it.
Bibliography
1. Judge G.F. Mancini, Democracy & Costitutionalism in the European Union (2000);
2. Thomann, E. and A. Zhelyazkova. 2017. Moving beyond (non-)compliance: the customization of European Union policies in 27 countries. Journal of European Public Policy 24(9): 1269-1288;
3. Judgment of the Court of 14 December 1962. - Milchwerke Heinz Wöhrmann & Sohn KG 31/62 Joined cases 33/62;
4. Alfons Lütticke GmbH v Commission of the European Economic Community 33/62 - Joined cases 31/62;
5. European Union Law edited by Catherine Barnard & Steve Peers, p 294 – 308;
6. Preliminary References to the European Court of Justice By Morten P. Broberg, Niels Fenger;
7. F Jacobs, ‘the Effect of Preliminary rulings in the National legal Effects’ in F Jacobs (ed), yearbook of Europe-an Law 1984 (1986) 1, 32 ff;
8. Broberg, M. (2008) ‘Acte Clair Revisited: Adapting the Acte Clair Criteria to the Demands of theTimes’.Common Market Law Review, Vol. 45, pp. 1383–97;
9. Broberg and Fenger 2014, pp. 230–54;
10. Betriebskrankenkasse Heseper Torfwerk v Koster judgment of 11. 3. 1965 —case 33/64.
11. Slynn of Hadley, introducing a European Legal Order (London 1992) 9 (the Hamlyn Lecture, 43).
Articles
1. EU court raises concerns over Polish judicial overhaul,James Shotter and Agata Majos EU’[2019] Financial Time online November 19 2019.
2. EPRS | European Parliamentary Research Service Author: Rafał Mańko Members' Research Service PE 608.628
Cases
1. JH Rayner (mincing Lane) Ltd & others v Department of trade and industry [1990]
2. Rheinmulen-Dusseldorf V EVGG (166/73) [1974] 1 CMLR 523
3. Van Gend En Loos (26/62) [1963] CMLR 105
4. ECR 1125, 1134; Factortame Ltd and others v Secretary of State for Transport [1990] 2AC 85, HL,
5. Action brought on 25 October 2019 — European Commission v Republic of Poland (Case C-791/19)
6. Judgment of the Court of 6 October 1982. - Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health. - Reference for a preliminary ruling: Corte suprema di Cassazione - Italy. - Obligation to request a preliminary ruling. - Case 283/81;
7. Judgment of the Court (Grand Chamber), 3 October 2013. Inuit Tapiriit Kanatami and Others v European Par-liament and Council of the European Union n.6 paras 101-104;
8. R v. Plymouth Justices, ex parte Rogers [1982] Q.B. 863 (at 870D); [1982] 3 C.M.L. Rep. 101;
9. Commissioners of Customs & Exercise V Samex ApS., [1983] 3 C.M.L.Rep 194 (at 212 para 32).
10. Gabalfrisa and Others (C 110/98 to C 147/98, EU:C:1999:489);
11. Associação Sindical dos Juízes Portugueses (C 64/16, EU:C:2018:117);
12. C-53/03 Synetarismos Farmakopoion Aitolias v Akarnanias (Syfait) v GlaxoSmithKline plc and GlaxoSmithKline AEVE (‘Syfait I’) [2005] ECR I-4609, para 29;
13. Vaassen-Göbbels, 61/65, EU:C:1966:39, p. 273
14. Syfait and Others, C 53/03, EU:C:2005:333, paragraph 29;
15. Margarit Panicello, C 503/15, ; EU:C:2017:126, paragraph 27;
16. Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 43;
17. Case C‑274/14, request for a preliminary ruling under Article 267 TFEU from the Tribunal Económico-Administrativo Central (Central Tax Tribunal, Spain), made by decision of 2 April 2014, received at the Court on 5 June 2014, in the proceedings, Banco de Santander SA;
18. 30/62 Da Costa [1963] ECR 31;
19. Dzodzi - Case C-231/8;
20. Case C-318/00 BacardiMarlmi and Cellier des Dauphins [2003] ECR 1-905;
21. Case 244/80 Foglia v Novello [1981] ECR 3045, paragraph 30;
22. Case C-302/04 Ynos;
23. Case C-36/99 Idéal tourisme [2000] ECR I-6049, paragraph 20;
24. Case C 343/90 Lourenço Dias [1992] ECR 1-4673. paragraphs 17 and 18;
25. Case C-83/91 Medicke [1992] ECR I-4871. paragraph 25;
26. Case C-415/93 Bosnian and Others [1995] ECR I-4921. paragraph 61;
27. Case C-454/00 VIS Farmaceutici Istituto scientifico delle Venezie (not published in the ECR). paragraph 21;
28. Case C-197/14 X and van Dijk, EU:C:2015:319;
29. 26 April 2002 in Case C-454/00 VIS Farmaceutici Istituto scientifico delle Venezie (not published in the ECR). paragraph 21;
30. Case 283/81 C.I.L.F.I.T. v ministry of health Observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice;
31. Van Gend En loos v Nederlandse Administratie der Belastingen opinion op Mr Roemer — case 26/62;
32. Betriebskrankenkasse Heseper Torfwerk v Koster judgment of 11. 3. 1965 —case 33/64;
33. HP Bulmer Ltd v J Bollinger SA [1974] Ch 401, 418 (Lord Denning).
Opinion
1. Disciplinary chamber for Polish judges not independent, says ECJ’s top advise, James Shotter JUNE 27 2019;
2. Opinion of Mr M. Lagrange —joined cases 28, 29 and 30/62;
3. Opinion of Advocate General Warner in Case 112/76 Manzoni [1977] ECR 1647 (1661-3);
4. Opinion of Advocate General Lagrange in joined Cases 28/62;
5. Opinion of Mr Tizzano c-318/00;
6. Opinion of Advocate General Jacobs in Case C-338/95;
7. Opinion of Advocate General Ruiz-Jarabo Colomer in Case C-461/03;
8. Opinion of Advocate General Wahl in Joined cases C-72/14;
Others fonts
1. Annual Report https://curia.europa.eu/jcms/jcms/Jo2_7000/en/;
2. Consolidated version of the Treaty on the Functioning of the European Union - part six: institutional and financial provisions;
3. Consolidated version of the Treaty on the Functioning of the European - title i: institutional provisions;
4. Consolidated version of the Treaty on the Functioning of the European- Chapter 1: The institutions;
5. Consolidated version of the Treaty on the Functioning of the European - Section 5: The Court of Justice of the European Union;
6. Consolidated version of the Treaty on the Functioning of the European Article 267 (ex Article 234 TEC) Official Journal 115 , 09/05/2008 P. 0164 – 0164;
7. Recommendations to national courts and tribunals, in relation to the initiation of preliminary ruling proceedings (2016/C 439/01);
8. Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (2018/c 257/01).
In 2015, the CJEU issued decisions on 404 preliminary references. At the same time, 436 new preliminary references were submitted, the largest numbers originating from Germany (79), Italy (47), the Netherlands (40), Spain (36) and Belgium (32). The topics of preliminary references decided in 2015 were concerned mainly with free movement and internal market law (74 cases), taxation (55 cases), intellectual property (51 cases), competition and state aid (49 cases), and the area of freedom, security and justice (also 49 cases). EPRS | European Parliamentary Research Service Author: Rafał Mańko Members' Research Service
Annual Report https://curia.europa.eu/jcms/jcms/Jo2_7000/en/
Rheinmulen-Dusseldorf V EVGG (166/73) [1974] 1 CMLR 523
Van Gend En Loos (26/62) [1963] CMLR 105
Judge G.F. Mancini, Democracy & Constitutionalism in the European Union (2000)
EU court raises concerns over Polish judicial overhaul, James Shotter and Agata Majos November 19 2019
Action brought on 25 October 2019 — European Commission v Republic of Poland (Case C-791/19)
Disciplinary chamber for Polish judges not independent, says ECJ’s top advise, James Shotter JUNE 27 2019
Opinion of Advocate General Tanchev delivered on 11 April 2019(1) Case C‑619/18 European Commission V Republic of Poland
Thomann, E. and A. Zhelyazkova. 2017. Moving beyond (non-)compliance: the customization of European Union policies in 27 countries. Journal of European Public Policy 24(9): 1269-1288.
Consolidated version of the Treaty on the Functioning of the European Union - part six: institutional and financial provisions - title i: institutional provisions - Chapter 1: The institutions - Section 5: The Court of Justice of the European Union - Article 267 (ex article 234 TEC) Official Journal 115 , 09/05/2008 P. 0164 – 0164
:<Art. 267 (ex. Art Article 234 TEC): the Court of justice of the European Union Shall have jurisdiction to give preliminary rulings concerning: a) the interpretation of the Treaties b) the validity and the interpretation of acts of the institutions, bodies, offices or agencies of the Union;
Where such a question is raised before any court of tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.
If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person custody, the Court of justice of the European Union shall act with the minimum of delay.>.
The procedure was introduced in 1949 for criminal, and in 1953 for civil cases. The current rules are Article 441 of the Code of Criminal Procedure and Article 391 of the Code of Civil Procedure. Quoted from EPRS | European Parliamentary Research Service Author: Rafał Mańko Members' Research Service PE 608.628
Recommendations to national courts and tribunals, in relation to the initiation of preliminary ruling proceedings (2016/C 439/01);
Judgment of the Court of 14 December 1962. - Milchwerke Heinz Wöhrmann & Sohn KG and Alfons Lütticke GmbH v Commission of the European Economic Community. - Joined cases 31/62 and 33/62.
RECOMMENDATIONS to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (2018/C 257/01)
Judgment of the Court (Grand Chamber), 3 October 2013. Inuit Tapiriit Kanatami and Others v European Parliament and Council of the European Union n.6 paras 101-104.
HP Bulmer Ltd v J Bollinger SA [1974] Ch 401, 418 (Lord Denning).
European Union Law edited by Catherine Barnard & Steve Peers, p 294 – 308;
Judgment of the Court of 6 October 1982. - Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health. - Reference for a preliminary ruling: Corte suprema di Cassazione - Italy. - Obligation to request a preliminary ruling. - Case 283/81.
Recommendations to national courts and tribunals, in relation to the initiation of preliminary ruling proceedings (2016/C 439/01)
R v. Plymouth Justices, ex parte Rogers [1982] Q.B. 863 (at 870D); [1982] 3 C.M.L. Rep. 101
Commissioners of Customs & Exercise V Samex ApS., [1983] 3 C.M.L.Rep 194 (at 212 para 32).
Cases Gabalfrisa and Others (C‑110/98 to C‑147/98, EU:C:1999:489), Advocate General Saggio concluded that a Spanish tax tribunal, the Tribunal Económico-Administrativo Regional de Cataluña (Regional Tax Tribunal of Catalonia, Spain), was not a court or tribunal for the purposes of Article 177 of the EC Treaty (now Article 267 TFEU).
Much of this contemporary case-law has been summarised by the Court in its judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses (C 64/16, EU:C:2018:117).
C-53/03 Synetarismos Farmakopoion Aitolias v Akarnanias (Syfait) v GlaxoSmithKline plc and GlaxoSmithKline AEVE (‘Syfait I’) [2005] ECR I-4609, para 29.
opinion of advocate general Hogan delivered on 1 October 2019 (1) Case C‑274/14 Banco de Santander SA
Vaassen-Göbbels, 61/65, EU:C:1966:39, p. 273
Syfait and Others, C 53/03, EU:C:2005:333, paragraph 29;
of 31 May 2005, and of 16 February 2017, Margarit Panicello, C 503/15; EU:C:2017:126, paragraph 27 and the case-law cited;
Judgment of 16 February 2017, Margarit Panicello, C‑503/15, EU:C:2017:126, paragraph 38;
Judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, par. 43.
In Case C‑274/14, request for a preliminary ruling under Article 267 TFEU from the Tribunal Económico-Administrativo Central (Central Tax Tribunal, Spain), made by decision of 2 April 2014, received at the Court on 5 June 2014, in the proceedings, Banco de Santander SA.
Santander cited (31) Case C‑274/14, Paragraph 64 In the present case it must first be stated that, according to the national legislation applicable, in particular Article 29(2) of Royal Decree 520/2005, the President and members of the TEAC are appointed by Royal Decree adopted by the Council of Ministers, on the proposal of the Minister for the Economy and Finance, for an indefinite period. According to that provision, both the President and the members of the TEAC may be removed from office according to the same procedure, that is to say, by Royal Decree adopted by the Council of Ministers on the proposal of the Minister for the Economy and Finance.
Preliminary References to the European Court of Justice by Morten P. Broberg, Niels Fenger
F Jacobs, ‘the Effect of Preliminary rulings in the National legal Effects’ in F Jacobs (ed), yearbook of European Law 1984 (1986) 1, 32 ff
Opinion of Mr M. Lagrange —joined cases 28, 29 and 30/62
Opinion of Advocate General Warner in Case 112/76 Manzoni [1977] ECR 1647 (1661-3) the opinion of Advocate General Lagrange in joined Cases 28/62 – 30/62 Da Costa[1963] ECR 31;
Dzodzi - Case C-231/8
Case C-318/00 BacardiMarlmi and Cellier des Dauphins [2003] ECR 1-905
opinion of Mr Tizzano c-318/00
Case 244/80 Foglia v Novello [1981] ECR 3045, paragraph 30;
Case C-302/04 Ynos
Case C-36/99 Idéal tourisme [2000] ECR I-6049, paragraph 20. See also Case C 343/90 Lourenço Dias [1992] ECR 1-4673. paragraphs 17 and 18, Case C-83/91 Medicke [1992] ECR I-4871. paragraph 25, Case C-415/93 Bosnian and Others [1995] ECR I-4921. paragraph 61, Case C-437/97 EKW and Wem & Co. [2000] ECR 1-1157, paragraph 52, and.
Case C-85/95 Reisdorf [1996] ECR 1-6257, paragraph 16: See in particular, the Opinion of Advocate General Tesauro in Kleinwort Benson and that of Advocate General Ruizlarabo Colomer in Kofisa Italia, both cited in footnote 12. 15 — My uncertainty appears to be supported by the order of 26 April 2002 in Case C-454/00 VIS Farmaceutici Istituto scientifico delle Venezie (not published in the ECR). Par. 21.
Case 283/81 C.I.L.F.I.T. v ministry of health
Case 283/81 C.I.L.F.I.T. v ministry of health Observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice
Case 283/81 C.I.L.F.I.T. v ministry of para 16
Case 283/81 C.I.L.F.I.T. v ministry paragraph 17
Case 283/81 C.I.L.F.I.T. v ministry paragraph 18
Case 283/81 C.I.L.F.I.T. v ministry paragraph 19
Case 283/81 C.I.L.F.I.T. v ministry paragraph 20
Broberg, M. (2008) ‘Acte Clair Revisited: Adapting the Acte Clair Criteria to the Demands of theTimes’.Common Market Law Review, Vol. 45, pp. 1383–97.
For a detailed analysis of these criteria and their interpretation by the courts of the Member States, see Broberg and Fenger (2014, pp. 230–54). 16 This was more common in earlier legal doctrine, for example, Rasmussen (1984, pp. 242–59). 17 For example, Tridimas (2003, pp. 9–50) and Broberg (2008, pp. 1383–97).
Back in 1982 when CILFIT was adopted the European Economic Communities consisted of ten Member States with seven official languages
See, for example, Broberg (2008, pp. 1383–97), Rasmussen (1984, pp. 242–59) and Craig (1995, p. 26). 19 See, for example, Opinion of Advocate General Jacobs in Case C-338/95 Wiener SI, EU:C:1997:352 and Opinion of Advocate General Ruiz-Jarabo Colomer in Case C-461/03 Gaston Schul, EU:C:2005:415. 20 Opinion of Advocate General Wahl in Joined cases C-72/14 and C-197/14 X and van Dijk, EU:C:2015:319.
Reference for a preliminary ruling — Approximation of laws — Safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses — Meaning of ‘transfer of a business’ –– Obligation to make a request for a preliminary ruling under the third paragraph of Article 267 TFEU — Alleged infringement of EU law attributable to a court of a Member State against whose decisions there is no judicial remedy under national law — Rule of national law which makes the right to reparation for the loss or damage sustained as a result of such an infringement conditional on the prior setting aside of the decision that caused that loss or damage; In Case C‑160/14, REQUEST for a preliminary ruling under Article 267 TFEU from the Varas Cíveis de Lisboa Portugal, made by decision of 31 December 2013, received at the Court on 4 April 2014, in the proceedings João Filipe Ferreira da Silva e Brito and Others.
Van Gend En loos v Nederlandse Administratie der Belastingen opinion op Mr Roemer — case 26/62;
Betriebskrankenkasse Heseper Torfwerk v Koster judgment of 11. 3. 1965 —case 33/64;
HP Bulmer Ltd v J Bollinger SA [1974] Ch 401, 418 (Lord Denning);
The Queen v Secretary of State for Transport, ex parte: Factortame Ltd and Others, Case C-213/89;
Slynn of Hadley, introducing a European Legal Order (London 1992) 9 (the Hamlyn Lecture, 43).
May 2020
by Daniele Lupi