1a) Tax official misinterpreting a union regulation?tax official required or permitted to refer to the ECJ under Art 267 TFEU?Ali has a right to a judicial hearing,which she should utilise, but is the tax official allowed or obliged to refer to the ECJ on interpretation? (distinction between art267(2) and (3) ).It’s the prerogative of the ECJ to decide whether a body is a court or a tribunal for this purpose and national law categorization is inconclusive as per the case of Corbiau v administration des contributions. The ECJ takes an inclusive approach as indicated in Dorsch Consult that may include whether the jurisdiction is compulsory,whether it applies rules of law,whether procedure is inter partes..however the case of Cartesio at para56-7 emphasized that a reference can only be made if there is a case pending a national court which decision lead to a judicial nature, it cannot on the contrary be decision that is in essence administrative,one that does not solve the legal dispute as clarified in the case of C Broekmeulan v Huisarts Registratie Commissie para 18 On the facts however, A tax official arguably prima facie is not a judicial body or tribunal, it’s one of the institution of the national executive , it does not have powers nor effects of a function of a judicial nature but enforcement, this is derived from the case of Dorsch Consult and the tax official’s decision does not produce a judicial remedy at case at hand. It’s argues that they are not entitled to refer,much more obliged. The trite fact is that there remains a right to appeal to a tribunal, there remains a judicial remedy as per art 267(3). The case of Lyckeskog emphasized that as long there is a possibility to appeal,it will not be considered ‘ no judicial remedy ‘ .a judicial remedy has not even been pursued yet.
1b) at the highest national court, whether a bird is an ‘animal’ for purposes of the regulation?should this national court refer?
-raise a question as to whether there are any guiding precedents of what is an animal or guidance in the regulation as to what indicates an ‘animal’
-raises the issue of invoking the Doctrine of Acte Clair as per the CILFIT Case, however it should not be applied lightly as the ECJ indicated, the national court here must ‘be convinced that the matter is equally obvious to the courts of other MS and to the ECJ’(para 16) , the ‘existence of such a possibility (obviousness) must be assessed in light of specific characteristics of community law,particular difficulties to which its interpretation gives rise and risk of judicial divergences (para21)
- still subjected to rather restrictive conditions in hopes to promote judicial cooperation and prevent divergences of points of law ( GF Mancini and DT Keeling, From CILFIT to ERT:the constitutional challenge facing the European court)
1c) serious doubt on the validity of EU regulation.
As per the case of Firma Foto-Frost , EU regulation is presumed to be valid without the ECJ deciding otherwise(para15),
Remains a right to appeal
As per the concrete theory and the case of Costa v ENEL, the court is obliged to refer if there is in substance ‘no judicial remedy in the actual case at hand’ ,since it remains subject to appeal, the court here on the facts is not obliged to refer but may do so under art267(2) if they consider necessary to give a judgement upon clarification by the ECJ. Interm measures when it does refer to the ECJ.
Atlanta case at para 19 allows a national court to issue an interm order to avoid the parties from suffering irretrievable/irreparable damage while awaiting the ECJ’s verdict, this interm measure subject to a number of strict and numerous factorial considerations.
2) M.Broberg and N.Fenger in Variations in Member States’ Preliminary References to the Court of Justice—Are Structural Factors (Part of) the Explanation? ELJ Vol19 issue 4 2013 explained that:
‘The preliminary reference mechanism, laid down in Article 267