Which courts or tribunals must refer? (art 267(3)) – obligation!

      • Rationale for imposing this duty is to prevent body of national case law that is not in accordance with EU law from being established!
      • 2 interpretations:
        1. The abstract theory: only bodies whose decisions are never subject to review
        • ➔ MSs would want this – don’t want to be subject to too many mandatory prelim refs
        1. The concrete theory: depends on whether the body’s decision is subject to appeal in the type of case in question.
      • ECJ’s jurisprudence seems to support the concrete theory.
        • Costa v Manchester taxi , 1964: although magistrate’s decisions were capable of being appealed in some instances, there was no right of appeal in the particular case – allowed prelim ref!
        • Lyckeskog case, 2000: just cos appellate court decision was subject to prior declaration of admissibility before it could be appealed to the Sup Ct did NOT mean that the appellate court’s decisions came within art 267(3) – procedural impediment to appeal did NOT make it a final court. It is Sup Ct is the final court under obligation.
        • ➔ hence, question is whether there is any possible legal remedy, regardless of practicability/subjection to restrictions.
        • What if lower national court makes prelim ref, which is reversed on appeal by higher court?
          • Cartesio case, 2008: ECJ supported ability of lower courts to refer to ECJ, even in face of opposition from higher court. It is up to the referring court alone (and not the appeal court) to assess relevance and necessity of prelim ref. For clarity and legal certainty, ECJ will abide by decision to make prelim ref, which will have full effect as long as it hasn’t been revoked/amended by the referring court.
          • Facts: about registration of company under Hungarian law (before lowest courts) – ECJ held that review of what was essentially administrative act is still inter-party procedure, between company which wanted the registration, and lower court seeking to deny it.