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Preliminary Ruling (Article 260)

Preliminary Ruling is a procedure in which parties that are fighting before a national court can refer a question to ECJ. They fight about the right interpretation of EU law

Aim: uniform application of EU law EU law is directly binding than international law. Normal international law only binds MS and we have also discussed that EU law binds individuals. It gives right to individuals and also obligation to individuals. That is why it is different then normal international law. it s new, different law system. So, how we know that? Because ECJ says so in VAN GEND EN LOOS. EU law is a new system of law that stands above the law of the national. Because of this new character of EU law, this uniform supreme character of EU law; it is, of course, great importance that EU law is applied uniformly right after through after EU. Uniformly means in exactly the same way.

267/1 the court of justice is exclusively competent to interpret the EU law. What EU law? (a)....................... (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union... (secondary law) Why the ECJ has only body that has competence to decide on validity of secondary law? because national court has not competence. But why national court doesn t have competence, what is the reason behind it? Supremacy and uniformity. Uniformity will be damaged otherwise.

ECJ is exclusively competence to do that is ruling concerning interpretation and the validity of EU LAW. It means preliminary reference procedure is certainly NOT a procedure in which ECJ can decide of national law. They are only deciding about the correct interpretation of EU law. So when the national court sends its letter to ECJ saying I got this national law and I am quite sure it is fall the line of EU law. Then in this case would be able to say I am not competence to decide the validity of your national law. I am only competence about the interpretation and validity of EU law. Now, what the ECJ was also allowed to do is re-interpreting the question referred to ECJ. Again Van Gend en Loos, the Dutch court sent a letter to ECJ saying Is Dutch law changing the custom tariffs for urea-formaldehyde . What are we supposed to do with that? And then the ECJ said the Dutch Court refer the question about the interpretation and validity of national law. We are not allowed to do that. However, we read the question as fallows: Does EU law allows for the increase of custom tariffs. So do you see how flexible court of justice can read the questions? So when the wrong question is referred to ECJ, ECJ can reinterpret the question and just open the case. Because, ECJ have done this. Then they are very keen on getting as much as possible. Why? Because it gives them the power to decide about right interpretation of EU law and also the power to dictate the national court, this is the way you should interpret EU law. So the question referred to ECJ will not easily send back. Preliminary reference procedure is not an infringement procedure. Tt is not an end decision. It is not a right of appeal. (If the national court gives a decision you don t like. You cannot say Oh! I would like to go ECJ Okay? ). It is about the correct interpretation of EU law.

WHAT can be referred to ECJ? The question about interpretation or validity of EU law. Reference can make to whom? To the ECJ.

267/2 - WHO?- Any court or tribunal of a MS. So a local court or a regional court or a higher court may send the case to ECJ. All of court to refer or limited amount of courts? All courts. Why? ECJ want to be as active as possible. ECJ wants interpret as much as possible. Because they want to be ensure uniform application of EU law. (Who make decide whether these institutions, who refer the question, is a court ? The ECJ. Why? Because the ECJ knows that MS like to keep the scope of court as limited as possible and also since article 267 is EU law, the ECJ is exclusively competent to interpret it. )

 BROECKMEULEN CASE: doctor special doctor registration committee - appeals comittee - Belgium Government says They are not a court, I don t think you are allowed to do this reference. ECJ looks at the case and says What kind of institutions are we dealing with? What kind of institution is this registration committee and this appeals commission. And they looked at the fact and they saw that Mr. Broeckmeulen would never be able to practice as a doctor in Belgium if you wouldn t be registered by this registration committee or appeals comity. So that s one. Impossible to practice without the contempt of this commission. Now, this commission was a private body however instituted under Dutch law and is given power by the Dutch government could decide about the registration of doctors. So you see, private institutions under Dutch law however and out given exclusive competence to decide about the registration of doctors in Holland. So, you see, the Dutch government has make this institution exclusively competence so Dutch government give his part of power and responsibility to this institution and since this private institution is exclusive competence to decide whether he can practice in Holland or not. The ECJ said this private institution should be regarded as a court under article 267 TFEU. This court should be allowed to make reference to us. And now we are going to decide about the correct interpretation of EU law. Okay? So it is a step ECJ take before looking at the facts of case.  ECJ is not always broadening the scope of word of court. There is also a case in your book which is called NORDSEE V. REEDERE MOND It s about group of ship-owners fishermen- -there was an agreement between parties. And one of the clauses in the agreement said If the parties have a disagreement about the application of contract, then the parties hereby agreed to go to arbitrator. Is an arbitrator a court ? In this case, ECJ decided that it isn t. Rule of ECJ isn t applicable to all arbitrators, however depending on the fact of the case, ECJ decided whether an arbitrator may be seen as a court or not. In this case, the parties were not forced to go an arbitrator. When they were signing the contract, they weren t forced to put the clause .And the arbitrator which was appointed wasn t appointed by the government. So do you see the difference between the registration committee and the arbitrator? The registration committee was given competence by the government. So the government said Actually I was the one who decide about the registration of doctors. So, I make this registration committee exclusively competence. In Nordsee case, German government has not said about these contracting stuff, I will make the arbitrator exclusively competent. Because I can t deal with all may work. This arbitrator wasn t appointed by the government. So he wasn t given competence. And that is why the government did not mean to take responsibility for the verdicts of the arbitrator. And that s why in this case ECJ decided the arbitrator in this case cannot be regarded as court. So in principle ECJ would like to extend the scope of court, but they don t say whatever makes a decision is seen as court. So there is a certain limitation.

!!! You should know that the basic case for preliminary ruling is VAN GEND EN LOOS. And in also HAUER we discussed in the topic of Fundamental Rights in the EU - there was a question what was referred to ECJ as preliminary reference procedure. It secures the uniform application of EU law and it develops the relation between the ECJ and national courts. National courts send the question and ECJ sends after back. Ideally, national courts and ECJ is at same level. So, the ECJ shouldn t have higher over on the hierarchy. What we see in practice is the relations are not as horizontal as it should have been. Now, we are going to discuss reference in WHAT KIND of situation? Who MAY and who MUST make the reference to ECJ. We have discussed that the question referred should be about the interpretation or the validity of EU. (267/1)

267/3 Where any such question is raised in a case pending before a court or 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. So, this article says if a national court that has decided about the case and in which case EU should be applied: If there is no appeal possible under national law, then the court must refer the case to ECJ. So, we go to court again to the lower court Sultanahmet Adliyesi and this court comes to a decision. The Judge looks to the case and decide again but I cannot go to appeal again. So, if the last step is not possible, this court must refer the Case to ECJ.So it cannot say there is a question about interpretation of EU law but I don t really know but I think the right answer is this. Then, that would be a breach of EU law. So what we have seen before any court or tribunal may refer question. Even the lower court may decide to make a reference for preliminary ruling. However, it is not obliged. Do you see the difference? Why is that again? Because the case law of the highest court will be case law, will be binding for the lower court. Now, if the highest court or court of last resort makes a wrong interpretation of EU law, this means, all the lower courts will subsequently wrongly interpret the EU law. There is no higher court then Supreme Court in any MS. So of course, Supreme Court are always under the obligation refer the case to ECJ. However, in some case also lower courts can be regarded as last resort. For example in Holland, you can only go to appeal twice. (and there is also cases about what can be regarded as last resort.)  LAINSGOCH - And appeal was only possible if the appeals court would take a decision on the admissibility (kabul edilebilirlik) of the case. So appeals court wouldn t immediately look at facts of the case but first look at admissibility of case. Now, the argument of the applicant, we have to regard(kabul etmek, gzetmek) the lower court as a court of last instance because I am not sure about the appeal. Then ECJ said that since there is an opportunity of appeal, eventhough the appeal is not sure, we do not consider the lower court as a court of last instance. We consider the Supreme Court as last instance.

Now there is a doctrine called ACTE CLAIR and this doctrine is an exception to the rule I just told you >> Lower courts may refer, court of last instance must refer. However the only case of acte clair. What is the rule? The rule of article 267 the treaty says- is there a question about interpretation? Is there a question about the validity? If there is no question, ECJ has no jurisdiction. So in case of acte clair there is no question about the interpretation and validity. Everything is already clear.  In the case of KBNER, the decision that had to be taken by the ECJ was so similar to the decision that was already taken before. So there is no question anymore. There is acte clair.

RESULT: So exception to exception however, the rule applied again The courts may make a reference, eventhough there is acte clair, the court may make a reference. Because the say there are still question marks. The case may be similar but they are not the same. There is still question mark in our head and we still would like to make this reference. So, in case of acte clair, if there is still question mark in head of the national court they may still make a reference. However, they are not obliged anymore.

So THERE MUST BE A QUESTION THAT is necessary to answer. If there is no question that is necessary to answer in order to solve the case before national court, then the ECJ is not allowed to take the case. Next week what we ll be discussing article 263 which is about the opportunity of the individuals asking the ECJ to rule that an act of the institutions of the EU is invalid. The opportunity is very limited but it is giving the right to go directly to ECJ and say Dear ECJ I think the act of EU is invalid please rule that it is invalid. So in the preliminary reference procedure you go to the national court and the national court refers to the ECJ; in article 263, you, me, whatever can go directly to ECJ without going to national court. Since the opportunity is so limited, article 267 PRP is often misused in order to go to the ECJ.  So that is what happened in the case of FOGLIA V. NOVELLO. ECJ gets the case and say This case stinks. Foglia and Novello have this agreement. In this agreement, they have this funny clause saying Novello will not pay the taxes if Foglia have to pay taxes on crossing the border. Isn t this a construction, didn t Foglia and Novello make up this whole story about selling wine and stuff and put a clause in the agreement to force the national court to refer the case to ECJ.So ECJ looked at the case and they said actually ,there is no question about the interpretation of EU law. We will not take this case because there is no real question. Our answer is not necessary in order to solve the dispute before national court. Because there is no dispute. Do you feel the distinction between a question and no question at all? Well, the court in Foglia said Since Foglia and Novello don t have a disagreement; they both say taxes paid at border were illegal. They used the national court to make reference to ECJ. In this case, in the beginning, there is no disagreement. The parties are just, in very smart way, trying to force the system, to force the ECJ to make a ruling that should not take place under article 267 but under article 263. *Foglia v.Novelloda olan ey de tam olarak bu.bu case , ecjyi i hukukun ceya eu law'un geersizli ine hkm vermesi ynnde zorlamas na yol aacak yorumun tipik bir yorumuydu.asl nda burda ecjye havale edilmi gerek bir soru yoktu.foglia italyan bir arap reticisidir.novello ise fransadan bir arap reticisidir.foglia novelloya aralar ndaki anla ma uyar nca arap sat yor.kontratta foglia araplar ta rken gmrkte vergi demek durumunda kal rsa bunu novellonun demeyece ini kararla t r yorlar.bu,onlar n anla malar ndaki normal bi kloz.foglian n arap f lar ta mac ya gider,ve foglia vergiyi demek durumunda kal r.sonra ta mac araplar gtrr novelloya ve ondan vergiyi demesini ister.novello ise hay r,bak szle meye ,e er sen demek durumunda kal rsan ,ben bunu demeyece im diyor. sonra bunlar ihtilafa d yor ve olay mahkemeye ta n yor.foglia s n rda paray demek zorunda kald ,foglia bunu novellodan geri almak istiyor,novello ise i te kloz ,ben demem diyor.fakat peki ye devletler mallar n serbest dola m gere i s n rlarda vergi uygulamaya haklar vvar m ? ulusal mahkeme benim bu konuda bilgim yok der ve davay ecjye havale eder.ecj davaya bakar ve der ki ''sak n ola novello ve foglia, ulusal mahkemeyi davay ecjye havale etme durumunda b rakmas iin bu gln klozu koyarak,mal sat m ,mallar n gnderilmesini de iinde bar nd ran koca bir kurgu (hocaya gre construction ingilizcesi) meydana getirmi olmas n ??ecj davaya bakt ve dedi ki ,eu law'un yorumlanmas ile ilgili bir soru sz sz konusu de il,gerek bir soru sz konusu de il.bizim verece imiz cevap ulusal mahkemedeki hususu zmek bak m ndan gerekli de il.''sorunun mevcut oldu u ve sorunun mevcut olmad durum

aras ndaki ayr m anlad n z m ? mahkeme diyor ki ,foglio ile novello aras nda bir uyu mazl k yok,her ikisi de denen vergiler illegal (mallar n serbest dola m sebebiyle) diyorlar.taraflar ulusal mahkemeyi ecjye havale etmesi iin kullanm lar.taraflar zekice 263 arac l yla ne srlebilecek bir iddiay dolayl olarak 267 kapsam nda ileri srmeye al yorlar.

STATE LIABILITY Now, if the facts of the case falls in even any case of indirect affect or interpretation in the light of directive , then still the principle stands that MS shouldn t benefit from its own mistake . Therefore, in Frankovich (the first case) the ECJ has developed the idea of STATE LIABILITY. State liability cannot be found in the Treaty. There is a lot of EU law that they are not actually in the treaty. It is developed by the courts in case law and for this most important case is Frankovich.  In Frankovich, State Liability. This is torts law. You are doing something you are not supposed to do or you are not doing something you supposed to do (haks z fiil) then this is tort. So when can we rely on State Liability? There is no rule in treaty, we have no case law, state liability is only possible where in the law provides a right to individuals, again just like direct effect, the state breach this EU law and because of this breach an individual has a damage. So there has to be a casual link between the state breach of EU law and the individuals damage. State Liability is only applicable in cases of manifest breaches of EU law. (manifest breach a ka ihlali) EU law should be very clear and MS says I don t care, I do whatever I want. And they go against EU law. Now, which case we used for state liability a manifest breach-? Again the Kbner Case. Because in this case, the right interpretation of EU law was so clear because a few days ago ECJ has interpreted the EU law and afterwards the Australian court decided exactly opposite of this interpretation. Now, this case is manifest breach of EU law. Because the Australian government is responsible for the wrongfulness of their judiciary. State Liability is applicable to deeds of state. Not only state institutions like government, local government but also deeds of the state all kind of state institutions-

Enforcement of EU law We have discussed enforcement under some headings. For example, enforcement of EU law on the private level. Enforcement just means that you get what you are given by the EU law. Now we discussed article 258, 259, 260 earlier. You remember, the commission or another MS complains about MS that not doing what it supposed to do under EU law. 258 Commission v. MS, 259 MS go to Commission to ask about another MS s behavior, 260 is the guarantee for the effectiveness of 258 and 259. Because if a MS does something wrong, then this article provides lump sum or penalty. Last week we discussed 267 Preliminary Ruling. This is also a part of enforcement, indirect enforcement because you ask national court to make a reference to ECJ. Today we are going to discuss article 263.

ARTICLE 263 TFEU


263 TFEU is about the possibility of annulment (iptal) the EU acts. In next week we will discuss article 265 which is about failure of acts and article 268 contractual liabilities and then article 340 non-contractual liability (torts). these are parts of enforcement procedure. (1) whose act can be annulled? (2)Which acts can be annulled? (3)Why they can be annulled? (4)By whom can they be annulled? and (5)when they can be annulled?

Whose acts can be annulled? I will discuss it as second. So new first question is Which act may be annulled? When you look at article 263 and you see The Court of Justice of the European Union shall review the legality of legislative acts, of acts of the Council, of the Commission and of the European Central Bank, other than recommendations and opinions, and of acts of the European Parliament and of the European Council intended to produce legal effects vis--vis third parties. It shall also review the legality of acts of bodies, offices or agencies of the Union intended to produce legal effects vis--vis third parties. Now you see the first paragraph of article 263 has a gross view of which acts may be declared void under article 263.recommendations and opinions are not included in this article.and only the acts that have binding effects. So not recommendations, not opinions, not declarations, not guidelines; because they are not supposed to have binding effect vis--vis third parties.