Understanding Preliminary Rulings and Rights in EU Law

Part A

Question 1

The preliminary ruling procedure facilitates the interaction and cooperation of the national courts with the Court of Justice under Article 267 of the Treaty on the Functioning of the EU (TFEU). The doctrines of direct effect and supremacy are applied for preliminary ruling procedure. There are some circumstances in which a court of a Member State is obliged to make a preliminary reference to the ECJ, as per the mandatory jurisdiction of the ECJ; while under the permissive jurisdiction, a national court may consider making a preliminary reference to the ECJ. Both the permissive and mandatory reference is discussed in this essay. If you require assistance with your law dissertation, then do not hesitate to seek professional support from law dissertation help.

At the outset, it would be useful to explain the purpose of the preliminary ruling to set the background for the analysis of the mandatory and permissive references to the ECJ. The preliminary rulings procedure was developed to constitutionalise the EC Treaty and to make the EU law harmonised within the EU. Through the use of the preliminary references under Article 267 the ECJ developed the ‘twin pillars’ of direct effect, which relate to the supremacy of the EU law over the national law; and enabling of individuals to enforce this law in national courts. The doctrine of direct effect, which was introduced by the ECJ in Van Gend en Loos, provides that EU law is directly effective on the national courts, meaning that the law can be invoked by individuals as well in the national courts. The core rationale of the preliminary rulings procedure is that the principle of supremacy of EU law be applied, individuals be ensured right of appeal, EU obligations are complied with by the members, and the interpretation of EU law remain uniform and consistent. The last mentioned also raises the need to interpret the EU law, for which purpose, Article 267 of the TFEU becomes very relevant. In order to ensure that the interpretation of the EU law remains uniform within the EU, the supreme authority on the final interpretation of the EU law is with the ECJ. This is an important point for analysing the situations in which national court is obliged to make a preliminary reference (mandatory jurisdiction) and those in which a national court might consider making a preliminary reference to the ECJ (permissive jurisdiction).

The permissive jurisdiction of the ECJ is provided under Article 267 (2) of the TFEU, which explains that any national court or tribunal may refer to ECJ if it feels that it is necessary to enable it to give judgment that such reference be made. Courts may make such reference if the case before them involves a question relating to the EU law; there is a doubt as to the meaning or scope of an EU provision; and the court considers that a preliminary ruling would be necessary to enable it to give judgment. The mandatory jurisdiction of the ECJ under which the national court or tribunal must refer to the ECJ is provided under Article 267 (3) of the TFEU, which provides that where any question om EU law interpretation is raised before a national court or tribunal against whose decision there is no appeal under the national law, then it shall refer the matter to the ECJ. The rationale for this is that where there is no recourse to appeal, the final interpretation of the EU law should be referred to the ECJ when there is a doubt as to the meaning or scope of an EU provision.

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1. Fredrico Mancini, ‘The Constitutional Challenges Facing the European Court of Justice’ in F Mancini (ed.), Democracy and Constitutionalism in the EU: Collected Essays (London: Bloomsbury Publishing 2000) 18-19.
2. Costa v Enel (1964) Case 6/64; R (Factortame Ltd) v Secretary of State for Transport [1991] 1 All ER 70.
3. Von Colson v Land Nordrhein-Westfalen (1984) Case 14/83.
4. Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1.
5. Susan Schmidt, “Who cares about nationality? The path-dependent case law of the ECJ from goods to citizens” in Susanne K Schmidt and Daniel Kelemen (eds.), The Power of the European Court of Justice (Oxon: Routledge 2014) 8.
6. Rheinmuhlen-Dusseldorf Case C-166/73 [1974] ECR 33); Peterbroeck, Van Campenhout & CeSCS v. Belgium, Case C-312/93, December 14, 1995, 1995 E.C.R. 1-4599.

The problem with mandatory mechanism in countries like the UK is that even if the Supreme Court is the final court of appeal in the UK, the leave to appeal to the Supreme Court may be refused, in which case the Court of Appeal would effectively be the final court of appeal in that particular case. A counter balance against the national courts not making the reference is that the member state may be made liable in damages for such failure of its national court of last resort to refer under 267(3). However, in the UK, where the matter may not have come before the highest court of appeal at all because of refusal of leave to appeal to the Supreme Court, the question of such liability of damages becomes controversial. Even with reference to the mandatory reference to the ECJ by the national courts, there are some exceptions when such reference need not be made. There is no obligation to refer the matter to the ECJ under Article 267 (3) of TFEU if the question that is raised regarding EU law is irrelevant, or has already been interpreted in a case where facts were materially identical, or under acte clair doctrine, which provides that the correct application of EU law is so obvious that it leaves no scope for reasonable doubt. For the application of the acte clair doctrine, the national state must be convinced that the application is also equally obvious to other national courts and that language differences will not result in inconsistent decisions in other national courts. However, the matter is left to the national courts to decide whether the conditions for application of acte clair do exist or not, in which case the mandatory jurisdiction too may become discretionary to some extent.

The critical question then is when the obligation on courts of last resort to refer questions to ECJ is not absolute and unqualified, then this compromises the uniformity of the EU law and in effect compromises the purpose for which the preliminary ruling procedure is established. Indeed, the practice indicates that courts are at liberty to decide even for mandatory jurisdiction whether or not to make references under the operation of act eclair. Furthermore, even with respect to liability for not referring, the case of Gerhard Köbler, indicated that simply the infringement of the duty to refer is not enough to make a state liable. The liability would depend on the standard of arbitrariness and the arguments that the national court puts forth to justify the non-referral. Therefore, it can be concluded that there is a as yet some flexibility given to the national courts for reference even under mandatory references, which may compromise the objective of uniformity of EU law under Article 267.

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7. Alec Stone Sweet and Thomas Brunell, ‘The European Court of Justice, state noncompliance, and the politics of override’ (2012) 106 (1) American Political Science Review 204.
8. Chiron Corporation v Murex Diagnostics [1995] F.S.R 325.
9. Kobler v Austria (2003) C-224/01.
10. Cilfit and Others [1982] ECR 3415.
11. Da Costa en Schaake NV, Jacob Meijer NV, Hoechst-Holland NV v Netherlands Inland Revenue Administration (1963) ECR 1 30/62 .
12. Cilfit and Others [1982] ECR 3415.
13. Agne Limante, ‘Recent Developments in the Acte Clair Case Law of the EU Court of Justice: Towards a more Flexible Approach’ (2016) 54 (6) Journal of Common Market Studies 1384.
14. Pedro IV Servicios [2009] ECR I-2437.
15. Gerhard Köbler v. Republik Österreich [2003] ECR I-10239.
16. Regina Valutytė, ‘State Liability for the Infringement of the Obligation to refer for a Preliminary Ruling under the European Convention on Human Rights’ (2012) 19 (1) Jurisprudencija 7.

Part B

Question 2

The issue in this scenario relates to the right to movement and residence within the EU law. The following sections advice the parties on their rights.

Bruno

Article 45 of the TFEU protects the rights of EU citizens to enter and take up residence in any EU member state for the purpose of work and employment. The issue in Bruno’s case is that he has dual citizenship as he is a national of both Canada and Italy. He Italian citizenship is based on the citizenship of his paternal grandparents although he has lived in Canada his entire life. Nationality is entirely a matter for the domestic law and member states within the EU may have different laws related to nationality, which would have an impact on whether the country not accepting dual citizenship would allow the individual entry and residence rights under Article 45. In Micheletti, it was held that for the purpose of ascertaining citizenship of a person who had dual citizenship, it was not necessary to refer to only the state where the person was habitually resident; Micheletti was habitually resident of Argentina but also had Italian citizenship. The court held that as an Italian citizen, he had rights under Article 45. Because Bruno’s paternal grandparents are Italians, he will be considered to be an Italian citizen and by extension an EU worker. Bruno already has a job as an engineer. In Brian Francis Collins v Secretary of State for Work and Pension, a distinction was drawn for purpose of right to movement between people already employed and people searching for a job. As Bruno has already started working in Germany, he is a worker. Even if he had not received this job offer, as per the decision in Ministree de I’Interieur v Aitor Oteiza Olazabal, Article 45 right to enter and look for work would be protected as that does not depend on residence permit.

Bruno has the right to enter and work in Germany under Article 45 of the TFEU. His dual citizenship with Canada does not impact this right.

Sandra

Sandra is a citizen of Sierra Leone. Her relationship with Bruno is fairly recent. She was initially refused entry because of lack of means of support. The question is whether she has a right of residence in Germany based on her relationship with Bruno.

Article 20, TFEU provides that only nationals of EU member states are EU citizens and only such citizens can have the right to freely move and reside in states of the EU. As Sandra is from Sierra Leone, this provision does not apply to her and she cannot claim the right to reside in Germany based on this. The Citizenship Directive 2004/38/EC provides that EU citizens and their family members have the right to move and reside freely within the EU. Under the directive, there are a number of beneficiaries that are recognised as family members, which also include common law partners (Article 3 (2) (b)), that is a partner with who the EU citizen has a durable relationship. A durable relationship would require some continuity and length of relationship.

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17. Micheletti v Delegación del Gobierno de Cantabria, [1992] ECR I-4239.
18. Ibid.
19. Michael D. Moritz, ‘The Value of Your Ancestors: Gaining 'Back-Door' Access to the European Union Through Birthright Citizenship’ (2015) 26 Duke Journal of Comparative & International Law 239.
20. Brian Francis Collins v Secretary of State for Work and Pension (2004) C-138/02.
21. Ministree de I’Interieur v Aitor Oteiza Olazabal (2002) C-100/01.
22. Martinez Sala v Freistaat Bayern [1998] ECR I - 2691, para. 18.
23. Secretary of State for the Home Department v Rozanne Banger (2018) Case C-89/17.

The next question then is whether her relationship with Bruno can be considered for claiming Article 8 rights to family life under European Convention of Human Rights. Family members who are not EU citizens can claim the right to residence based on EU law. In Sandra’s case, as she is not married to Bruno, the lex loci laboris principle will be used to determine whether German laws would require marriage for access to family rights under Article 8. Even if German laws would not require marriage, ECtHR jurisprudence provides that there should be a real and genuine family life for application of Article 8. In this case, as the relationship is a new one, this requirement of real and genuine family life is not established.

Sandra may not claim a right of continued residence in Germany as she does not fulfil the requirements under the relevant laws discussed above for such permission.

Molly

Molly is rejected on public health grounds. She is Bruno’s elderly widowed mother and a Canadian citizen. As a result of a fall down the stairs and a broken hip, she is unable to live alone and requires assistance in the chores of daily living for at least the next 6 months while she is recovering. The question is whether she can claim right of residence as a beneficiary of Bruno.

Directive 2004/38/EC defines family members as including ‘other beneficiaries’ (Article 3). Such other beneficiaries include dependent and sick family members. ECJ has held in Rahman, that states are under an obligation to facilitate entry and residence for dependants of EU citizens. As Molly is dependant on Bruno due to the state of her health and Bruno has a job in Germany, which allows him to take care of Molly, she may claim right of residence under Article 3.

Nicky

Nicky is rejected on public safety grounds. He is Bruno’s 19 year old son and has a long history of substance abuse and prior convictions (5 times) for selling heroin and cocaine. Article 27(1) Directive 2004/38 allows restriction on the freedom of movement and residence on grounds of public policy, public security or public health. This was explained in Hristo Gaydarov v Director by the ECJ as allowing member states to make national legislation that allow them to restrict entry on the basis of prior conviction of a criminal offence which is serious and present continuing threat; a conviction for trafficking in narcotic drugs would fall in this category as per the decision of ECJ. Therefore, the German authorities can use the public policy and public security grounds to deny permission to Nicky.



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24. E Cloots, National Identity in EU Law (Oxford: Oxford University Press 2015).
25. Abdulaziz, Cabales and Balakandali v UK (1985) 7 EHRR 471.
26. Secretary of State for the Home Department v Rahman and Ors (2012) C-83/11.
27. Hristo Gaydarov v Director na Glavna direktsia ‘Ohranitelna politsia’ pri Ministerstvo na vatreshnite raboti (2010) C-430/10.

Bibliography

Cases

Abdulaziz, Cabales and Balakandali v UK (1985) 7 EHRR 471.

Brian Francis Collins v Secretary of State for Work and Pension (2004) C-138/02.

Chiron Corporation v Murex Diagnostics [1995] F.S.R 325.

Cilfit and Others [1982] ECR 3415.

Costa v Enel (1964) Case 6/64

Da Costa en Schaake NV, Jacob Meijer NV, Hoechst-Holland NV v Netherlands Inland Revenue Administration (1963) ECR 1 30/62.

Gerhard Köbler v. Republik Österreich [2003] ECR I-10239.

Hristo Gaydarov v Director na Glavna direktsia ‘Ohranitelna politsia’ pri Ministerstvo na vatreshnite raboti (2010) C-430/10.

Kobler v Austria (2003) C-224/01.

Martinez Sala v Freistaat Bayern [1998] ECR I - 2691.

Micheletti v Delegación del Gobierno de Cantabria, [1992] ECR I-4239.

Ministree de I’Interieur v Aitor Oteiza Olazabal (2002) C-100/01.

Pedro IV Servicios [2009] ECR I-2437.

Peterbroeck, Van Campenhout & CeSCS v. Belgium, Case C-312/93, December 14, 1995, 1995 E.C.R. 1-4599.

Rheinmuhlen-Dusseldorf Case C-166/73 [1974] ECR 33)

R (Factortame Ltd) v Secretary of State for Transport [1991] 1 All ER 70.

Secretary of State for the Home Department v Rahman and Ors (2012) C-83/11.

Secretary of State for the Home Department v Rozanne Banger (2018) Case C-89/17.

Von Colson v Land Nordrhein-Westfalen (1984) Case 14/83.

Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1.

Books

Cloots E, National Identity in EU Law (Oxford: Oxford University Press 2015).

Mancini F, ‘The Constitutional Challenges Facing the European Court of Justice’ in F Mancini (ed.), Democracy and Constitutionalism in the EU: Collected Essays (London: Bloomsbury Publishing 2000).

Schmidt S, “Who cares about nationality? The path-dependent case law of the ECJ from goods to citizens” in Susanne K Schmidt and Daniel Kelemen (eds.), The Power of the European Court of Justice (Oxon: Routledge 2014).

Journals

Limante A, ‘Recent Developments in the Acte Clair Case Law of the EU Court of Justice: Towards a more Flexible Approach’ (2016) 54 (6) Journal of Common Market Studies 1384.

Moritz MD, ‘The Value of Your Ancestors: Gaining 'Back-Door' Access to the European Union Through Birthright Citizenship’ (2015) 26 Duke Journal of Comparative & International Law 239.

Sweet AS and Brunell T, ‘The European Court of Justice, state noncompliance, and the politics of override’ (2012) 106 (1) American Political Science Review 204.

Valutytė R, ‘State Liability for the Infringement of the Obligation to refer for a Preliminary Ruling under the European Convention on Human Rights’ (2012) 19 (1) Jurisprudencija 7.

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