By Charlotte Choy. Charlotte is a Postgraduate Certificate in Laws candidate at the University of Hong Kong and a recent LLB graduate from the University College London. With a diverse background encompassing experiences in London, Beijing, and Hong Kong, she has developed an interest in Criminal Law, EU Law, and Public Law.
Article 267 of the Treaty on the Functioning of the European Union (“TFEU”) is a potent provision that represents the pinnacle of the Court of Justice of the European Union’s (CJEU) jurisdiction. This provision empowers the CJEU to issue preliminary rulings relating to the interpretation of the Treaties and the validity and interpretation of acts of institutions, bodies, offices, or agencies of the Union. In addition, national courts have the ability to refer such questions to the CJEU for a ruling. The use of this provision gives the CJEU the authority of a referee to oversee the operation of EU law and provide guidance when the law is unclear. However, the question remains whether this authority granted by Article 267 confers extensive power upon the CJEU, creating a hierarchical EU system where all national courts are subject to its command. While it may appear so on the surface, a closer examination of leading case law reveals that the actual authority held by the CJEU in relation to Article 267 is uncertain.
This article aims to provide an analysis of the powers and functions conferred upon the CJEU under Article 267. It will delve into the relevant case law surrounding Article 267, shedding light on the intricate dynamics between national courts and the CJEU. By examining these case laws, this article seeks to elucidate the complex nature of the relationship between these courts, concluding that it remains uncertain and subject to further exploration.
Powers and Functions of Article 267
The dynamic between national courts and the CJEU under Article 267 can be characterised as one of collaboration, wherein the CJEU serves as a referee in facilitating the application of EU laws. Article 267 establishes that in the event of a question concerning EU law or the validity and interpretation of acts of EU institutions, bodies, offices, or agencies arising before a national court, the CJEU “may, if it considers that a decision on the question is necessary to enable it to give judgment”,[1] give a ruling on that matter. The wording of this phrase suggests that the relationship is reference-based rather than appeal-based.[2]
It is important to emphasise that a CJEU ruling does not pass judgement on the validity of national law; rather, it serves to provide clarification on any uncertainties pertaining to the compatibility of national law with EU law.[3] As summarised by Lenaerts, President of the CJEU, the CJEU “simply clears up any confusion left over in the bloc’s treaties.”[4]
CJEU as the Commander
Notwithstanding conflicting views on the relationship between the CJEU and national courts under Article 267, several court decisions suggest that this provision establishes the CJEU as the highest authority within the hierarchical EU legal system, with national courts serving as mere executors of the CJEU’s instructions. For instance, in Mangold,[5] the CJEU ruled on the compatibility of national law with Treaty provisions and held that the relevant German law violated the EU directive. This judgement demonstrates the CJEU’s position that it possesses the power to declare national laws invalid when they are incompatible with EU law, effectively placing the CJEU in a position of supremacy. In Mickelsson & Roos, the CJEU undertook a comprehensive examination of the Swedish rule limiting the use of jet-skis and “all the guidance that it deems necessary”.[6] Such an approach by the CJEU has been subject to criticism from some commentators. For instance, Professor Enchelmaier criticised that the judgment leaves no room for national court to play an independent role, as the CJEU effectively makes decisions on behalf of the national courts, with the latter merely following the CJEU’s decision.[7]
The practice of a hierarchical legal system in the EU is highlighted in various other cases. In International Chemical Corporation,[8] the CJEU’s judgement is found to have a “multilateral and not merely a bilateral effect”,[9] since a decision of the CJEU has a precedential value, and all national courts would need to consider the precedent case dealing with the same issue. As Craig commented: “insofar as CJEU rulings have de facto precedential value, they place the CJEU in a superior position to the national courts”.[10]
The case of CILFIT also underscores the superior authority of the CJEU, as it establishes that national courts may choose not to refer a case to the CJEU only if they are convinced that the correct application of EU law is so clear and ambiguous as to leave no doubt.[11] This principle, known as the acte clair doctrine,reinforces the CJEU’s position as the ultimate arbiter of EU law. However, the high threshold of “no scope for any reasonable doubt”[12] and the requirement for a comparison of different language versions[13] makes it challenging for national courts to refrain from referring cases to the CJEU, emphasising the importance of the CJEU in the EU legal system.
Lastly, the doctrine of Kobler liability means that national courts that are over-reliant on the CILFIT principle may attract state liability.[14] The doctrine holds that EU member states can be held liable for damages when their national courts violate EU law. Such was the case in Ferreira da Silva e Brito,[15] where the CJEU found that the domestic Supreme Court had acted inappropriately in not making a preliminary reference under Article 267.
These cases indicate that the CJEU is in a position of substantial authority as the highest court within the EU legal hierarchy, with national courts generally adhering to its decisions.
Dialogue between the CJEU and National Courts
Although there is case law that appears to strongly suggest that the CJEU holds the most prominent position in a hierarchical EU system, there are several instances that indicate otherwise.
In Taricco II, the Italian Constitutional Court submitted a subsequent reference to the CJEU, which provided supplementary information, in order to mitigate the potential disruptions to the Italian Constitution resulting from the CJEU’s ruling.[16] In its earlier Taricco I decision, the CJEU held that the Italian norms on limitation periods in relation to tax and financial offences did not comply with EU law.[17] The CJEU’s subsequent decision to uphold the Italian law in light of new information, which it had previously ordered to be set aside, can be seen as a dialogue between the national court and the CJEU. In this instance, the CJEU demonstrated its willingness to accommodate national laws that were previously found to be incompatible with EU law, indicating a cooperative relationship between the two courts.
The decision of the German Federal Constitutional Court in 2 BvR 859/15 showcases a further dimension of the relationship between national courts and the CJEU. Despite the CJEU’s ruling that the European Central Bank’s bond-buying programme was within its granted powers, the German Constitutional Court chose to deviate from the CJEU’s decision. The national court deemed the CJEU’s ruling “incomprehensible” and concluded that the programme was ultra vires.[18] The decision in question, which departed significantly from the CJEU’s judgement, suggests that national courts are not obligated to follow the CJEU’s rulings and may have the final say in certain circumstances, thus undermining the notion that the CJEU is at the apex of the EU legal hierarchy. Moreover, in the case of CILFIT, some commentators, including Mancini and Keeling, have argued that the CJEU’s decision imposes restrictive criteria for national courts but still constitutes a form of dialogue between the CJEU and national courts.[19] Professor Hjalte Rasmussen characterised the ruling as a “give and take” strategy[20] in which national courts have the power to handle EU matters independently, but only when certain conditions are met. This highlights the potential for a cooperative and collaborative relationship between national courts and the CJEU, rather than a strictly hierarchical one.
Conclusion
Article 267 is a powerful mechanism that national courts can use to ensure the effective application of EU Law across member states. Although the relationship between national courts and the CJEU may initially appear to be one of collaboration, cases such as Foglia and International Chemical Corporation have suggested that the CJEU’s authority surpasses that of national courts, portraying a hierarchical EU legal system. However, upon closer examination, it becomes apparent that the power dynamic between the CJEU and national courts is far from clear. Cases such as Taricco II highlight that the courts work in cooperation within this system and that national courts may even set aside CJEU rulings. Ultimately, the interplay between these courts demonstrates the intricate nature of the EU legal system and the ongoing dialogue for a harmonised application of EU law across member states.
[1] Consolidated Version of the Treaty on the Functioning of the European Union [2012] OJ C 326, art 267.
[2] Paul Craig & Gráinne de Burca, EU Law Text, Cases, and Materials (7th edn, Oxford University Press 2020) 515.
[3] Ibid 517.
[4] Jeremias Adams-Prassl & Sanja Bogojevic, Great Debates in EU Law (1st edn, Red Globe Press 2021) 118.
[5] Case C-144/04 Werner Mangold v Rüdiger Helm [2005] ECR I-9981.
[6] Case C-142/05 Åklagaren v Percy Mickelsson and Joakim Roos [2009] ECR I-4273 [15]-[16], [39].
[7] Stefan Enchelmaier, ‘Moped trailers, Mickelsson & Roos, Gysbrechts: The ECJ’s Case Law on Goods Keeps on Moving’ (2010) 29 Yearbook of European Law 190.
[8] Case 66/80 SpA International Chemical Corporation v Amministrazione delle Finanze dello Stato [1981] ECR 1191.
[9] Craig (n 2) 526.
[10] Ibid.
[11] Case 283/81 CILFIT and Lanificio di Gavardo SpA v Ministry of Health (1982) ECR 3415.
[12] Ibid [18].
[13] Ibid.
[14] Case C-224/01 Gerhard Köbler v Republik Österreich (2003) ECR I-10239.
[15] Case C-160/14 Ferreira da Silva e Brito v Estado português (2015) C363/16.
[16] Case C-42/17 M.A.S. & M.B (2018) C52/16.
[17] Case C-105/14 Taricco and Others (2015) C363/13.
[18] Judgement of German Federal Constitutional Court 2 BvR 859/15.
[19] Mancini, G. Frederico and David T. Keeling. ‘From CILFIT to ERT : the Constitutional Challenge facing the European Court’ (1991) 11 Yearbook of European Law 1-13.
[20] Hjalte Rasmussen, ‘The European Court’s Acte Clair Strategy in C.I.L.F.I.T.. Or: Acte Clair, of course! But What Does it Mean?’ (1984) 9 European Law Review 242.
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