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Judicial Control & Preliminary Reference

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Giuliana Privitera

on 29 May 2014

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Transcript of Judicial Control & Preliminary Reference

"The Treaty established the Court as the judicial body responsible for ensuring that both the Member States and the Community institutions comply with the law"
What does the ECJ do?
EU law and
its equal application across all Member States.
How is Judicial Control exercised?
Judicial Control is mainly exercised through:

Annulment actions
-> directed against Acts of the EU institutions (Art 263 TFEU);
Infringement actions
-> against MS (Art 258,260 TFEU);
Preliminary references
-> guidance to national courts for the interpretation of EU law (Art 267 TFEU).

Preliminary References: Art 267 TFEU
"The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:

(a) the
of the
(b) the
of the institutions, bodies, offices or agencies of the Union."

A '
quasi-law maker
' body because of its broad jurisdictional power;
Acts as a
Constitutional Court
judicial review
on both the EU and its Member States;
Includes the Court of Justice, the General Court and specialized courts.
Case 294/83 Les Verts v. Parliament of [1986] ECR 1356.
interpretation of EU law
The 'Jewel in the crown'
crucial in the
legal integration
process of the EU;
national courts
became part of the
judicial architecture
uniform application
of EU law.
Dutch citizen
Degree in medicine in Belgium
Returned to Netherlands to set up a general medicine practice
Successful application to the secretary of State, but...

Mr. Broekmeulen
Royal Netherlands Society
association, three branches
Council for General Medicine
Registration Committee
Appeals Committee
Preliminary references as a
Mandatory Step
to practice medical profession: submit an application to the Registration Committie
Broekmeulen v Registration Commission
(2) "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. "(Art 267 TFEU)
Dutch student in medicine: one year of apprenticeship required
Foreign degree: no apprenticeship required
Mr. Broekmeulen was rejected because considered as dutch citizen,
Preliminary references as an
(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."
(Art 267 TFEU)
Mr. Broekmeulen appeals against the decision to the "Appeal Committee"
The "Appeal Committee" referred the issue to the ECJ -->
Freedom of movement of persons,
Right of Establishment
Freedom to provide services!
Doctor Broekmeulen!
A Private Tribunal?

Status public authority
? YES!
Consent and cooperation of public authorities

Function of independent judicial tasks?
YES! Adversarial procedures and final decisions
Preliminary references as an
the question is irrelevant;
acte éclaré: Court has already ruled on the point;
acte clair: correct interpretation is obvious.
WHO can refer to the ECJ?
"Any court or tribunal of a MS"?
Cilfit criteria
Reasons for the rejection- Nordsee
The objectives of the private arbitration (speed, finality and privacy) may be jeopardize

The parties could choose a private tribunal in a non-EU State

The application of community law in arbitration would be of PRIVATE nature and would have no significance for the development of community law

Raccomandation of the ECJ in the Nordsee case
The National court may be called upon ,by the private tribunals, to collaborate and assist them in order to interpret the law applicable.

The National court may then appeal to the ECJ for interpretation of EU law.

What is the point of this?
Arbitration tribunal
National court
Is it even legally possible?
In the
Roda Golf
case the ECJ sentenced that a national court may refer a question to the Court only if there is a case pending before it and it is intended to lead to a decision of JUDICIAL nature.

Therefore the national court cannot appeal for questions of Administrative nature.
Annulment Actions
But he has studied in Belgium!
The ECJ reviews the legality of legislative acts, acts of the bodies, offices or agencies of Union intended to produce

legal effects vis-à-vis third parties
A Private Tribunal?
Provided for by law?
Due process requirement?
Application of rule of law?
Bound to go before it?
Can individuals also
bring annulment actions?
MS,the Commission,the Council and the Parliament->
to ask the ECJ to review the legality of Union acts

->Natural and Legal persons only if
or of
direct and individual concern
to them
Infringement actions
'When a MS has
to fulfil an obligation under Treaties'

Making a complaint to the
->easiest way of challenging MS EU law infringements for
private parties
Judicial Control
Preliminary Reference
Number of reference to the CJEU
Total number of requests by countries
Broekmeulen VS.
Huisarts Registratie Commissie
Private tribunal?
Three German shipping groups applied for EU aid. When they learned that aid would've probably been insufficient they made a
pooling agreement
In 1976 the German's Bremen authorities and the Commission started doubting the validity of the contract; consequently the representatives of the group stated:
“No pooling aid between our shipping companies has taken place, and no such obligation exists”
Nordsee now seeks repayment, considering the contract
Arbitrator's decision
Final decision
Questions to the ECJ
1. Is a German arbitration court authorized to make a reference to the Court for preliminary ruling?

2. Does the pooling contract amount to an irregularity?

The arbitrator found that the pooling agreement was not void under German law. Also, the compensation depended on whether the pooling of aid amounted to an irregularity within Community law
The court has no jurisdiction to give ruling on the question referred to it by the arbitrator.

The arbitrator has the force of res judicata between the parties. He has no status of a “Court or tribunal of a Member State” within Art. 267 of the Treaty.

Comparison of the two cases
In Broekmeulen case preliminary ruling was granted because the law requested that the specific case needed to be discussed in a court, having the right to refer to the ECJ.

In Nordsee instead the case was discussed in an arbitration tribunal having to right to refer to the ECJ, as based on private agreement.
United Kingdom
: arbitrator does not exercise on behalf of the State
--> any question regarding Community law may be raised before in national courts before the Court of Justice (Art. 177)
Danish Government
: arbitration tribunals have no jurisdiction to refer questions to the Court, as permanent courts do. The definition of tribunal does not include arbitration tribunals, following the principles of the ECJ: it is qualified as a commercial arbitration, as a form of private commerce, and not state dispute settlement.
Italian Government
: the pooling agreement might undermine the whole system of Community aid, the appropriate conditions and requirements could not be respected.
Judicial control &

Preliminary reference
Marco Cazzola
Cesare Figari Barberis
Manuela Fulga
Beatrice Ondoli
Giuliana Privitera

Thanks for your attention!
"Essentials of EU Law" by August Reinisch;
"Explaining the Use of Preliminary References by Domestic Courts in EU Member States: A Mixed-Method Comparative Analysis" by Maarten Vink , Monica Claes and Christine Arnold
EU Court of Justice
The Law Society of Scotland, Edinburgh by Mark Clough QC Brodies LLP 23 May 2013
Practical Considerations Regarding the Preliminary Ruling Procedure Under Article 177 of the EEC Treaty by Manfred A. Dauses
"Common Market Law Reviews" 1983, Watson
"Preliminary References by Public Administrative Bodies: When Are Pubic Administrative Bodies Competent to Make Preliminary References to the European Court of Justice" by Martin Broberg
Full transcript