The for individuals to seek legal protection through the

The preliminary
reference is a procedure whereby a national court may make a reference to the
ECJ concerning the interpretation or validity of an EC regulation1.The
relationship between the national courts and the CJEU IS reference based .It is
not an appeal system thus no court hierarchy is to be established. The decision
to refer is to be made by the national courts and is subject to guidelines laid
down by the ECJ.2.Article
267(2) lays down the situations wherein a decision to refer is discretionary and
lays down .Art 267(3) is more strict in its application and imposes an
obligation on the national courts against whose decision there is no judicial
remedy3 to
make a reference to the ECJ if the case doesn’t fall in any of the exceptions
referred to by the CJEU IN the case of CILFIT.4

In response to a
reference the ECJ provides a ruling on the issues of community Law ,which the
national court thereby takes as a guidance to adjudicate on the case in
question Rheinmuhlen5,ECJ
stated that article 267 made “available to the national judge a means
of eliminating difficulties which may be occasioned by the requirement of
giving community Law its full effect.” The doctrine of
supremacy of the EU law necessitates that the national court hold these rulings
by the ECJ supreme and direct the commencing national law in their light6. The
application of the principle of preliminary reference thus serves three

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the preliminary ruling procedure secures legal unity by making sure that the EU
Law is uniformally applied in all member states .The CJEU deems a reference
useful whenever there
is a new question of interpretation of general interest for the uniform
application of European Union law.7

 Secondly, The Preliminary reference procedure
serves the further development of law. Thus where the existing case law doesn’t
appear to be applicable to a new set of facts, the CJEU recommends that a
reference under article 267 must be made.8Sir
Thomas Bingham MR, in Customs and Excise
Commissioners Vs ApS Samex(1983), drew attention to the ECJs expert
knowledge of community Law.

Thirdly and most
importantly, the procedure serves to ensure the protection of individual human
rights .It is not easy for individuals to seek legal protection through the ECJ
due to the strict rules that apply under article 289 of the  TFEU.Thus the preliminary reference is a way
to initiate indirect proceedings Jego-Quere
Vs Commission.(2004).9

It is thus no wonder
that the preliminary reference procedure is often referred to as the “jewel in the crown or the backbone of the
community legal order Da Costa”10 .Article
267 alone has led to the development of  doctrines of imperative legal effect such as the
doctrine of Direct Effect., Supremacy of EU Law and doctrine of state liability.

The landmark case of Van gend en loose established that certain
directives of the EU Law would be directly applicable.11Following
this ruling, the EU Law would be directly applicable in member states Defrenee vs Sabenna,Foster vs British Gas

Yet Another landmark
case Francovich Vs Italy
devised the principle of state liability in EU Law by deciding that a member
states failure to transpose an Eu directive into national law can render the state
liable for violation of TFEU13.In
addition,Costa V ENEL devised the
important principle of supremacy of EU law. Simmenthal, 14Marleasing SA Vs LA Commercial
Internacional  and held that a EU
provision could not be overridden by a domestic national legislation.

It is thus submitted
that Article 267 is a useful tool to ensure correct application of EU Law. And
to hold it supreme in all member states. However the application of the Article
is not as simple as it sounds. This is due to the fact that not every point of
disagreement can be referred to the ECJ for a reference due to the common sense
reason that it will lead to an overwhelming of the courts. Although the ECJ has
been a more than willing acceptor of references15
even in cases of apparently similar facts,16
the cost and delay in proceedings is a tangible factor that must be
acknowledged. The ECJ may take upto two years to give a ruling following a

It is due to this
reason that certain guidelines have been provided by the ECJ as to when a
reference can be made.Let us analyse these in turn.

Firstly, the question
of making a reference inevitably provokes the reference as to who may refer.The
ECJ has discouraged hearing cases from arbitration commissions and
administrative bodies Nordsee Deutsche
.Denuit Vs Transorient18.However
the ECJ has given a very broad interpretation to the meaning of courts and
tribunals that may refer.In Broekmulen 19the
fact that the appeals committee, albeit a private body, and not recognized as a
court or tribunal under Dutch law,(operating with the consent of public
authorities and enjoying a finality of its decisions)was held to qualify as a
court or tribunal that may make a reference under article 267.The case laid
down certain factors that need to be present for a court or tribunal to qualify
for sending a reference .To qualify for a Court or Tribunal, it must be
Established by Law, Have a degree of Permanence, and Apply  Rule of Law. However later cases have shown
that the ECJ has exercised its own discretion in acceptaing a reference for
ruling .In  cases such as Dorsch Consult20
AND el Yassini Vs Secretary Of state for Home Deaprtment. All the
qualifications for a court or tribunal weren’t met ,still a reference was heard
by the ECJ.

Secondly, A distinction
is drawn between article 267(2) and article 267(3).The former entails
discretionary powers of referral by those courts against whose decision there
is a specific judicial remedy facilitating a of the decision by a higher court review
Following the Court of Appeal case R
v International Stock Exchange of the UK and the Republic of Ireland, ex parte
Else there appears to be a presumption in favor of a referral to the
CJEU on points of EU law. Whereas a referral is deemed obligatory
in case of the court against whose decision there is no judicial remedy. Let us
analyse the operation of these two articles in turn.

Lord Denning in Bulmer Vs Bollinger 21laid
down guidelines as to when the national courts may refere a question to the ECJ
under article 267(2)These are 1)That
the decision in the particular case is necessary to pronounce the judgement in
the case.i.e a ruling by the ECJ will impact the final decision in the case.2)National court may choose to follow a
previous ruling on the similar facts however it may distinguish the facts and
resubmit a question in the hope of getting a new ruling and 3)Where the point is clear and free
from doubt, it may use the doctrine of act clair (discussed below) and not

The  ECJ has concurred vast discretionary powers to
the courts to refer. Hoffman held
that the courts have the jurisdiction to refer a point for decision at any
stage of the proceedings, whether or not an appeal is pending De Geus.A
reference can be made even if the courts have already ruled on a similar
question.IN De Costa(above), a point
of reference similar to the one adjudicated upon in Van Gend En loose was made ,the ECJ held that while it was not
always necessary to refer, it was always open to the national courts to make a
reference on similar points.

The guidelines above
simply ascertain when a reference becomes necessary. These factors are not
conclusive of when a reference can be made. At this point, there are two sides
to the coin. a)That the judges exercise
discretion and refer and b) that the judges exercise discretion and do not
refer. It is obvious to understand that once a reference is made, the
application of EU Law and its uniform application is to be achieved .However
the application of Law may become murky if the courts choose not to send a
reference for a preliminary ruling.

Lord Denning in Bulmer
Vs Bollinger pointed out that the Time, Cost, Workload of the ECJ Commisioners of Customs and Excise Vs Samex
and the wishes of the national parties Poldor
Ltd Vs Harlequin Records Shops Ltd24
may be taken into account before they courts exercise their discretion. Samex
APS however did  point out that when the
point of EC law was at issue, not providing a reference and having to exhaust
all means of appeal in domestic courts may also increase the time and cost in
the resolution of a case.The issue of overwhelming of the courts and
unnecessarily increase the  workload  of the ECJ is a practical reason not to refer
for a ruling under article 267.

It  is at this stage that the ECJ guidelines In CILFIT 25
case come into operation to prevent unnecessary referrals to the ECJ.In the CILFIT
case the ECJ was asked the pertinent question as to when the courts may be
deprived of their discretionary powers to refer and be bound to make a
reference for preliminary ruling .The issue is caught by article 267(3)..the
primary purpose of the article was aptly laid down by the ECJ in Hoffman and
stated that…” the particular objective
of the third paragraph is to prevent a body of national case law not in accord
with the rule of community law coming into existence in any member state”

The court has laid down
the situations in which courts are not obliged to refer .These are 1)the question of ec law is irrelevant.
i.e the question of community law will not determine the outcome of the case.262)Where the ECJ has already given a
ruling on the question, even if the issues aren’t strictly identical.273)Where the matter is Act Clair’

The criteria is similar
to the one laid down in Bolmer vs
Bolllinger(Above) by Lord Denning.albeit the first and third Term of CILFIT
applies strictly.

Act Clair’ is
originally a doctrine that originated in the French administrative law and
means simply that the correct application of EU Law is so obvious as to leave
no scope for any reasonable doubt as to the manner in which the issue is to be
resolved.Da costa ,a case almost
identical in facts to Van Gend En loose,
the courts asserted that while article 267(3) unqualifiedly required national
courts to submit every question of interpretation of a treaty to the ECJ, this
would not be necessary if the question was materially identical.

It is submitted that
the application of  Act Clair ,may not
always be smooth as to achieve the uniform application of Eu Law .This is
because the courts may try to distinguish the case on the facts.As in Da
Costa.Although a Preliminary Ruling was provided by a materially identical case
in Van Gend En loose , the national courts nevertheless made a reference to
bring to light a new point in case or in hopes of getting a different ruling in
the matter.

The French case Re Societe Des Petrols Shell Berre 28held
that only if the judge is not competent enough to determine the meaning of an
act in question can there arise a “question of interpretation ” and whence
there was no doubt as to the meaning there was no need to refer.

Can the national courts
may thus decide of their own violation that a certain law is clear and leaves
no room for doubt and refuse to refer a matter to the ECJ thereby hindering the
uniform application of EU Law ?.In R Vs
Henn, the established case law of the court of justice in a matter of
treaty article was interpreted as clear enough to decide the case.29 A
reference from the House of lord for ruling confirmed the courts decision.However
as Lord Diplock pointed out in the case that just because the meaning of a text
seemed plain doesn’t mean no question of interpretation may arise. The ECJ and
English courts have very different styles of interpretation and may ascribe different
meanings to same provisions.In Garland
Vs British Rail Engineering ltd Lord Diplock 30did
concede that when there was a consistent line of case law from the ECJ, the
answer would be too obvious to dismiss the need for a reference under article

There seems to be a
considerable overlap in the exceptions laid down in both Bollinger and CILFIT and  implies that Act Clair can be interpreted in
both a narrow sense(De Costa) or in a looser and more subjective sense(Shell Berre).In
Shell berre , the Doctrine of Act Clair prevented the French council From
referring the matter to the ECJ even though the matter at hand seemed far from
clear.The question of what constitutes clear is very subject and is based on
personal assessments of the judge and can very well be incorrect. As in Rv Henn what seemed clear to Lord Widgery
did not turn out to be correct.

It is thus submitted
that if the exceptions to article 267 are to be strictly followed, this may
provide an easy means of avoiding referral.In minister of interior Vs Cohn
Benditt, Mr. Benditt was deprived of a remedy in an issue of deportation as the
Consil d’etat thought that the law was clear on this point, thus deciding that
an EU directive wasn’t directly effective in the matter, therefore depriving an
EU law of Direct Effect that beat the sole purpose of TFEU, the uniform
application of EU Law.

The second provision of
the CILFIT criteria, previous ruling on similar matter ,(act éclair)is also
always not fool proof.In R vs secretary
of state for HD exparte Sandhu31,
the earlier ruling in Diatta Vs Land
,based on similar facts were referrd to and a reference under article 267
wasn’t made. Applying the CILFIT criteria,the courts relied on the obiter
statements in Diatta and on their Lordhips interpretation, Mr Sandhu wasnot
entitled to remain in UK.Thus a loophole in CILFIT criteria led to disastrous
consequences for individual rights.

Moreover, a court may
avoid its obligation under  Article267(3)
by deciding the case without considering the possibility of a referral Mees vs Belgium33.
As the House of Lords in Wellcome
Foundation Ltd  vs Secretary of state for
social services 34thought
it ” Highly undesireavle to embark on
considerations of community law which might have necessitated a referral to the
courtsof justice under article 267.

It becomes important
thus to point out in the end the opinion of kneeling and Mancini35
who thougt the CILFIT criteria to be a dialogue between the ECJ and the
national courts with the intention of reining in the latter. The discussion in
the above essay pointed out situations where 
inspite of clear rulings and previous decisions , the ECJ has willingly
accepted references. On the other hand, while it is  clearly not necessary for the “final” courts
to refer in every case, it is better to adopt a narrower approach of CILFIT so
as to avoid the pitfalls of cases such as Rv
Henn and R Vs Inner London Education Authority exparte Hind.In such situations
if the affected party does not  have the
means to appeal it may result in a misapplication of the EU law thereby
defeating the primary objective of article 267.Since Kobler36
case , final courts that choose not to refer may incur state liability under
the Francovich37
Criteria, if they get the point of EU Law wrong, thereby enhancing further
checks for the uniform application of EU law. It is thus concluded that the
approach of the ECJ with reference to Article 267 is effective. They accepting
the CILFIT criteria to prevent an Overwhelming of the Courts but only encourage
courts to resort to it when matters were unequivocally clear all the while
retaining their own jurisdiction in matters of acceptance of a point of
referral thereby ensuring uniform application of EU Law.