ECJ: Article 267 TFEU
The Court of Justice of the European Union (CJEU) role is to ‘ensure that in the interpretation and application of the
Treaties the law is observed’ (Article 19(1) TEU (ex Article 220 EC)). The Court of Justice (ECJ) is the highest court
and the supreme authority on EU Law.
According to Article 267(1)(a) and (b), the ECJ has the jurisdiction to make rulings on:
(a) the interpretation of the TFEU and ‘acts of the institutions’ (ie secondary legislation), bodies, offices or agencies
of the Union, eg the European Central Bank; and
(b) the validity of secondary legislation.
The Article further provides that if a question concerning ‘the interpretation of the Treaty’ is raised before any
national court or tribunal then that court may refer the question to the ECJ, if it considers that a ruling from the
ECJ is ‘necessary’ to allow it (ie the national court) to give judgment (Article 267(2) ). However, if the national court
in question is one ‘against whose decisions there is no judicial remedy under national law’, that court must refer the
matter to the ECJ if it considers that a ruling is necessary (Article 267(3)).
1) Is the body a ‘court or tribunal’?
People
Only a ‘court or tribunal’ can make an Article 267 TFEU reference - Dorsch Consult: Eat
Cheese
The ECJ listed relevant factors in making this determination: In the
(a) is the body Permanent; Republic of
(b) is the body Established in law; Ireland
(c) does the body have a Compulsory jurisdiction;
(d) does the body have an Inter partes procedure (ie, had hearings where all parties could be present and be
heard);
(e) does the body apply Rules of law; and needtoapplyeachfactorto thebody in q
(f) is the body Independent.
Not every factor needs to be satisfied - just most of them:
• Broekmeulan case - Appeals Committee of the Dutch Medical Profession was held to be a tribunal because it
had a binding jurisdiction, consent of public authorities to act, and had full hearings
• Nordsee case - an arbitrator with voluntary jurisdiction was not considered a tribunal
forpt I 2 you are not always
given all info youneed to
2) Is a decision on EU law point ‘necessary’ for judgement? ask the rightquestions
Assuming that the body hearing a case is a ‘court or tribunal’, Article 267 TFEU indicates that the national court must
decide whether a decision on a question of EU Law is ‘necessary’ to enable it to give judgment in the case before it -
CILFIT Criteria:
A decision on a question of EU Law will not be necessary if one of the following situations applies: Irish
Post
(a) where the question of interpretation of EU Law raised is Irrelevant to the conclusion of the case; Office
(b) where ECJ has Previously dealt with the point of EU Law in question;
(c) where the application of EU Law is so Obvious as to leave no scope for any reasonable doubt as to the manner in
which the question raised is to be resolved, and the court is convinced that the matter is equally obvious to the courts of
other Member States and to the ECJ - acte clair doctrine = no reference will be necessary if the national court considers
that the EU Law point before it is clear and free from doubt.
need toapplyeachsituationto the EU Lawpointin q
The Court of Justice of the European Union (CJEU) role is to ‘ensure that in the interpretation and application of the
Treaties the law is observed’ (Article 19(1) TEU (ex Article 220 EC)). The Court of Justice (ECJ) is the highest court
and the supreme authority on EU Law.
According to Article 267(1)(a) and (b), the ECJ has the jurisdiction to make rulings on:
(a) the interpretation of the TFEU and ‘acts of the institutions’ (ie secondary legislation), bodies, offices or agencies
of the Union, eg the European Central Bank; and
(b) the validity of secondary legislation.
The Article further provides that if a question concerning ‘the interpretation of the Treaty’ is raised before any
national court or tribunal then that court may refer the question to the ECJ, if it considers that a ruling from the
ECJ is ‘necessary’ to allow it (ie the national court) to give judgment (Article 267(2) ). However, if the national court
in question is one ‘against whose decisions there is no judicial remedy under national law’, that court must refer the
matter to the ECJ if it considers that a ruling is necessary (Article 267(3)).
1) Is the body a ‘court or tribunal’?
People
Only a ‘court or tribunal’ can make an Article 267 TFEU reference - Dorsch Consult: Eat
Cheese
The ECJ listed relevant factors in making this determination: In the
(a) is the body Permanent; Republic of
(b) is the body Established in law; Ireland
(c) does the body have a Compulsory jurisdiction;
(d) does the body have an Inter partes procedure (ie, had hearings where all parties could be present and be
heard);
(e) does the body apply Rules of law; and needtoapplyeachfactorto thebody in q
(f) is the body Independent.
Not every factor needs to be satisfied - just most of them:
• Broekmeulan case - Appeals Committee of the Dutch Medical Profession was held to be a tribunal because it
had a binding jurisdiction, consent of public authorities to act, and had full hearings
• Nordsee case - an arbitrator with voluntary jurisdiction was not considered a tribunal
forpt I 2 you are not always
given all info youneed to
2) Is a decision on EU law point ‘necessary’ for judgement? ask the rightquestions
Assuming that the body hearing a case is a ‘court or tribunal’, Article 267 TFEU indicates that the national court must
decide whether a decision on a question of EU Law is ‘necessary’ to enable it to give judgment in the case before it -
CILFIT Criteria:
A decision on a question of EU Law will not be necessary if one of the following situations applies: Irish
Post
(a) where the question of interpretation of EU Law raised is Irrelevant to the conclusion of the case; Office
(b) where ECJ has Previously dealt with the point of EU Law in question;
(c) where the application of EU Law is so Obvious as to leave no scope for any reasonable doubt as to the manner in
which the question raised is to be resolved, and the court is convinced that the matter is equally obvious to the courts of
other Member States and to the ECJ - acte clair doctrine = no reference will be necessary if the national court considers
that the EU Law point before it is clear and free from doubt.
need toapplyeachsituationto the EU Lawpointin q
