Preliminary Reference Procedure Essay

The ECJ has furthermore been wary of the objection that to answer a reference would be to apply rather than interpret the relevant law.

By contrast Arnull argues that the conditions for acte clair finding were really quite loose and that the English courts have used the doctrine to escape referring questions to the EC.

There are two criteria needed to make a reference to the ECJ: The reference must be made by a court or tribunal (though the court can make a reference by its own motion rather than by that of the parties-see CILFIT); and reference must be necessary to enable the court or tribunal to give judgment.

This is an extract of our The Relationship Between Ec Law And National Law Preliminary References, Direct Effect.

Indirect Effect And Inccidental Effect document, which we sell as part of our European Law Notes collection written by the top tier of Oxford students.

The duty in 234(3) is to ensure that EC law is applied consistently and prevent the adoption of national law that is inconsistent with that of member states.

There are two theories about which bodies this duty covers: o Abstract Theory: Only bodies whose decisions are never subject to appeal o Concrete Theory: Any body whose decision is not subject to appeal in the particular case in question.

ECJ's ruling delivered to a particular court and available on request).

In fact it's become more vertical (ECJ superior to national courts) and multilateral (treating ECJ references to a particular court as general precedents).

HOWEVER it only refuses to give a ruling if the issue of EC law is manifestly inapplicable to the dispute (C-364/96 ICI).

Art 234 gives the ECJ jurisdiction to rule on the interpretation of EC law, but NOT to apply it to a particular case.


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