UK Legislation: The Preliminary Reference Procedure Under Article 267 TFEU

Summary
• The ECJ can only give rulings on the interpretation of the Treaties and validity of secondary EU legislation, under Article 267 TFEU.
• References are either discretionary or mandatory.
• Bodies that can make a reference have to be courts or tribunals that satisfy the Dorsch criteria.

Conclusions
• If there is a judicial remedy available from a certain UK court, then that specific court has discretion on making a reference.
• If there is no judicial remedy available (usually the court in question being the Supreme Court) then a reference would be mandatory.
• Before making a reference, the courts have to take into account the case law guidelines.

Recommendations
• The UK courts will have to be certain of the issues that would be referred, especially since the procedure is time-consuming and expensive.
• Guidelines should always be considered in detail, to ensure that making a reference is the right choice for the specific case.

Introduction
The aim of this report is to explain the preliminary reference procedure, under Article 267 TFEU, and how it relates to UK legislation, to discuss its guidelines, present potential criticism on the matter and provide some recommendations on dealing with preliminary references.
Preliminary References
Preliminary references are used on matters concerning EU legislation such as:
1. The interpretation of the Treaties ;
2. The validity of EU measures, bodies, offices or agencies of the Union .
These can either be discretionary or mandatory . The function of the preliminary reference procedure is to make sure the interpretation and validity of the EU law is the same across all member states.
Who can make a reference?
Any court or tribunal can make a reference on EU legislation to the...

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...Gomis and others C-167/94 ECR I-1023
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