The Functions of Article 267 of the Treaty on the Functioning of the Essay

The Functions of Article 267 of the Treaty on the Functioning of the European Union - Essay Example he ECJ. Article 267 of TFEU provides that when there is a question concerning the interpretation and application of EU law: When 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. 6 It therefore follows that the word â€Å"may† as it appears in Article 267 of the TFEU does not impose upon national courts a compulsory duty to refer a question of EU law to the ECJ for determination.7 The obligation to refer a preliminary question of EU law to the ECJ is only mandatory when the matter is before the court of final appeal and no further national remedies are available to the litigants.8 With lower national courts relieved of the compulsory obligation to refer a question of EU law to the ECJ when the interpretation and application of EU law is in doubt can be counterproductive to the goal of achievin g consistency in the interpretation and application of EU law when a national court comes to the decision that not to refer a question to the ECJ for interpretation. Nyikos explains how the discretion to submit a preliminary reference to the EU on a point of EU law can compromise integration of national legal systems with the EU’s legal system and consistency in the interpretation and application of EU laws. According to Nyikos, the decision to refer a preliminary question of EU law depends on a number of variables that are difficult to predict. To begin with, the decision to submit a preliminary question of EU law largely depends on the national courts’ â€Å"acceptance† of intervention by the ECJ.9 A court’s decision to refer a preliminary question of EU law also depends on the â€Å"national judicial procedure†, the â€Å"complexity of the issue† and â€Å"individual court experience.†10 The ECJ however, has established a significa nt safeguard against the risk of inconsistency in the application and interpretation of Community law in cases where the national court is of the opinion that a particular EU law is not valid. In such a case, a referral is mandatory regardless of whether the court seized of the matter is a court of first or last instance. This is because it would be entirely inconsistent with the supremacy of EU law and the goals of consistency among EU states for a national court to render an EU law invalid and another state to uphold the same EU law.11 Ideally, perfect and seamless integration of national legal systems with the EU legal system and consistency of EU law within and among the Member States should be accomplished by Article 267