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Transcript of Preliminary References:
Plato Plastik v Caropack (2004),
(ex Article 234 TEC)
The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:
of the Treaties;
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
, 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
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
act with the minimum of delay.
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).
Discretion v Obligation
Criteria for Refusal
1. Hypothetical case
2. Irrelevance to the dispute
3. Lack of clarity
Foglia v Novello
Loosening the obligation to refer
already ruled matter by the ECJ
Acte Clair Doctrine
uniform interpretation in different languages
"Various language versions of a provision must be uniformly interpreted"
(Advocate General Opinion, par.78)
Admissibility of the Preliminary
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
National Courts' benefits
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
Plastic bags producer
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
EP and Council Directive 94/62/EC
of 20 December 1994:
- PACKING WASTE
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"
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
Interpretation of the word "packaging"
- yes (a) -> language
- no (b)
Claim of payment for plastic bags
Interpretation of the word "producer"
Responsibility of the recycling
Compatibility (Proportionality Principle)
Compatibility (ARA Monopoly)
National Court solely can determine:
the need for a preliminary ruling
the relevance of the questions
Binding duties of the ECJ
Spirit of Cooperation
Advisory opinions on general or hypothetical
NO PRELIMINARY RULING
OBVIOUSNESS OF THE INTERPRETATION
NOT EVIDENT RELATION
NOT NECESSARY LAGAL MATERIAL
NECESSARY DETAILED EXPLANATION
BY THE NATIONAL COURT
WHEN POSSIBILITY OF DOUBTS
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?
"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
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.
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