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Preliminary References:

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by

Stefano Altieri

on 5 November 2013

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Transcript of Preliminary References:

Preliminary References:
Plato Plastik v Caropack (2004),
C-341/01

The case
Conclusion
Bibliography
The Procedure
Article 267
(ex 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 interpretation of acts of the institutions, bodies, offices or agencies of the Union;

Where such a question is raised before any court or tribunal of a Member State, that court or tribunal
may
, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.

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.

If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union
shall
act with the minimum of delay.
The Procedure
Who can refer?
Bodies must be independent, be established by law and have a compulsory jurisdiction, and be taking a decision of a judicial nature (C-210/06 Cartesio).
Cooperation
Discretion v Obligation
Criteria for Refusal
1. Hypothetical case
2. Irrelevance to the dispute
3. Lack of clarity


Foglia v Novello
Plato Plastik
Telemarsicabruzzo
Loosening the obligation to refer
already ruled matter by the ECJ
Acte Clair Doctrine
Da Costa
CILFILT
Teleological interpretation
effet utile

uniform interpretation in different languages
verbatim
interpretation
"Various language versions of a provision must be uniformly interpreted"
(Advocate General Opinion, par.78)
Admissibility of the Preliminary
Reference Questions
Effects of Preliminary Ruling of Interpretation
- within the case

- beyond the case
binding on referring court
binding on other courts
Preliminary Reference Procedure: a tool of integration
Individuals' benefits
National Courts' benefits
ECJ's benefits
Thank you!
P. Craig & G. de Burca, EU Law: text, cases and materials, 5th edition, Oxford, Oxford University Press, 2011
D. Chalmers, G. Davies & G. Monti, European Union Law, 2nd edition, Cambridge, Cambridge University Press, 2010
P. Kent, European Union Law, 6th edition, London, Sweet & Maxwell, 2012
K. Lenaerts, The unity of European Law and the Overload of the ECJ- The System of Preliminary Rulings Revisited, The future of the european judicial system in a comparative perspective, pages:211-239, 2006
G. Tridimas & T. Tridimas, National courts and the European Court of Justice: A public choice analysis of the preliminary reference procedure, Available at SSRN: http://ssrn.com/abstract=320784
The Context
Plastic bags producer
Plato Plastik
v
Caropack
Distributor
2. These questions have arisen in the context of an action brought by Plato Plastik [...] against Caropack [...] concerning the latter's refusal to provide confirmation that it has joined the system for the collection and recovery of packaging waste.
Regional Court of Austria
Landesgericht Korneuburg
PRELIMINARY RULING
ECJ
EP and Council Directive 94/62/EC
of 20 December 1994:
- PACKING
- PACKING WASTE
COMMUNITY LEGISLATION

Directive 94/62
ART 1(1): harmonization of national measures
- impact on the environment
- functioning of internal market

ART 2(1): application to all packaging

ART 3(1): definition of "packaging"
NATIONAL LEGISLATION
Directive 94/62 transposed into the Austrian Legal System by decree:

- any person producing or marketing packaging
- measures for the return and recovery of packaging
Referral to the ECJ
Questions:
1
V
Interpretation of the word "packaging"
- yes (a) -> language
- no (b)
2
X
Claim of payment for plastic bags
3
V
Interpretation of the word "producer"
4
X
Responsibility of the recycling
5
X
Compatibility (Proportionality Principle)
6
X
Compatibility (ARA Monopoly)
7
X
Compatibility
Outline
National Court solely can determine:

the need for a preliminary ruling
the relevance of the questions
Binding duties of the ECJ
V
Spirit of Cooperation
X
Advisory opinions on general or hypothetical
questions
NO PRELIMINARY RULING
IF:

OBVIOUSNESS OF THE INTERPRETATION

NOT EVIDENT RELATION

HYPOTHETICAL PROBLEM

NOT NECESSARY LAGAL MATERIAL
NECESSARY DETAILED EXPLANATION
BY THE NATIONAL COURT
WHEN POSSIBILITY OF DOUBTS
THE COURT'S
REPLY
COMMISSION'S CONCERNS ABOUT THE CREDIBILITY OF THE DISPUTE
THE COURT STATES: "THE ARGUMENT THAT THE DISPUTE IS FICTITIOUS CANNOT SUCCED".
UNCERTAINTY OF THE AUSTRIAN GOVERNMENT
Admissibility of the questions?
Answers:
"It can hardly be denied that this questions are objectively and inherently necessary in order to enable judgment to be given in the main proceedings" -> The Court has sufficient information

"these questions are manifestly not the subject of the main proceedings"

"It is not clear if this questions have any effect on the outcome of the main proceedings"

1 + 3
2 + 4
5 + 7
1.
Article 3(1) of European Parliament and Council Directive 94/62/EC of 20 December 1994 on packaging and packaging waste must be interpreted as meaning that the plastic carrier bags handed to customers in shops, whether free of charge or not, constitute packaging within the meaning of that directive.
2.
In the context of the first subparagraph of Article 3(1) of Directive 94/62, ‘producer’ refers to the producer of the goods, not the manufacturer of the packaging products.
1. The Procedure

2. The Case and the Context

3. Conclusion
Full transcript