51825
Description
Flashcards by grantcat69, updated more than 1 year ago
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Created by grantcat69
over 11 years ago
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| Question | Answer |
| Article 267 TFEU Purpose - independent court or tribunal Why do we have preliminary procedure? What is a court or tribunal? Not closely connected with the state Opinions are interpretative - supremacy | "Where such a question is raised before any court or tribunal of a Member State, that court may, if it considers that a decision on the question is necessary to enable it to give judgment, require the Court of Justice to give a ruling thereon". |
| Marks and Spencer v Customs and Excise Commissioners The Court of Appeal raised a question of the ECJ relating to a Directive. The ECJ noted that the question was based on a mistaken premise regarding direct effect and, having put the Court of Appeal straight on that point, concluded that it (the ECJ) therefore needed to rephrase the question (otherwise the answer would not make sense). | R (on the application of British American Tobacco) v Secretary of State for Health Directive had been adopted by the Council In September 2001, British American Tobacco and Imperial Tobacco sought permission from the High Court in London to apply for judicial review of the "intention and/or obligation" of the UK government to transpose the directive into national law. The application was based on several grounds, including inappropriate legislative base. The case was referred to the ECJ for a ruling, and in due course the court held that the directive was valid; Art.114 was the correct legislative base. Art. 207 should not have been used in addition but this was a purely formal defect did not affect the validity of the directive. |
| Broekmeulen [1981] In this case, a doctor, Dr Broekmeulen’s registration as a GP had been refused. His appeal to the Appeals Committee of the Royal Netherlands Society for the Protection of Medicine, was based on EU law. References were made to the ECJ one of which asked whether or not the Appeals Committee was a “court or tribunal”. | Nordsee [1982] an independent arbitrator was not held to be a court. This was because the arbitrator lacked compulsory jurisdiction. |
| Procura della Republica v X [1986] the ECJ held that questions referred to it by the Italian Public Prosecutor were inadmissible, as he did not constitute a “court or tribunal”. | benefits of preliminary reference are: • It means that those bodies are able to apply EU legislation after it has been interpreted by the ECJ rather than having to try to interpret the law themselves • It allows the ECJ to clarify the law on legislative provisions which might not otherwise reach the ECJ • It can even reduce the number of appeals at the national court level (i.e. in the Member States). |
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