eSignature Lawfulness for Mortgage Quote Request in European Union

How to eSign a document: e-signature lawfulness for Mortgage Quote Request in European Union

hey yall hope exam season is treating you well I thought I'd do a quick video for you on article 267 um which I think is probably one of the easiest areas of EU law and all that's happening here is the UK court or national Court of any member state says we don't understand this bit of EU law they throw the question up to the court of justice of the European Union who answer the question and then send it back to the National Court simple as that um right let's have a look at some of the case law so as ever we're going to start with um definitions and this time we're going to think about the different types of Courts and tribunals that can actually make a reference to the court of justice of the European Union under article 267 now the main case that you want to set out here is Brock muan from 1981 and while you may think it's pretty obvious in a problem question or even in an essay question what a court or a tribunal is I think it's still worth going through these criteria um and making sure that you can tick all of them off before you proceed onto the next step really easy way to get some marks early on so the first question is it established by law um is it permanent can't be temporary does it have compulsory jurisdiction in other words when it makes a decision is that decision final and then also enforceable on the parties as well interpares means between parties and it just means that the case should be a versus b or X versus y as you would see in any normal adversarial legal system does it apply rules of law in other words is it integrated into the legal system of that particular member State um you may also want to mention the Nord SE case from the following year in 1982 um this was a case that um queried whether arbitrators could be considered a court or a tribunal and the overall reaction from the court of Justice was that they could not generally be seen as um a court or a tribunal because they weren't part of the wider public legal system available to everyone so because the parties in the case had agreed to go to the arbitrator that almost took it out of the normal legal system um and it wasn't really open to the public in the same way so I think that's the key thing to take from that case so there's a number of instances when court or a tribunal should refer um in exart else 1993 uh Sir Thomas Bingham who was the master of the roles at the time set out some criteria for when a court should make the decision to refer a case so it has to be crucial to the decision so the uh question of EU law has to be key to coming to the final decision in the actual case itself the court should also consider the need for consistency across the whole of the EU and making sure that that um words and phrases in either the treaty or directives or regulations are all interpreted in a consistent manner across all 28 member states uh and the court should also think about the advantages that the court of justice has as well in Europe so they're used to dealing with European Union law all of the time they're experts in the area and also they're part of the wider EU institution so they're the best place people to offer an interpretation and that's something that the national courts should always bear in mind um another point before we move on is that when the national courts do phrase their question for the court of justice of the European Union um those questions should be clear and also not hypothetical so they should actually relate to the facts of the case rather than just dealing with hypothetical situations um and gasparini which was a criminal case from 2006 um illustrates that perf speically the um Court in that case tried to issue a question on hypothetical grounds and they said that um they can't do that so there's also a number of situations when a courter or tribunal has to refer the question to the court of justice of the European Union and the treaty itself sets out that this is the case when there is no right of appeal now there's been a couple of interpretations of what this no right to appeal actually means so in the abstract theory that I've put there um the idea was that it literally meant there was no right to appeal there was no higher Court available so if we think about this in the UK context under the abstract Theory the only court that must refer would be the Supreme Court because there's simply no higher Court in the country now this created some unfair situations and meant that there weren't many references going to the court of justice of the European Union and so what developed sort of um early on within the European Union was the concrete Theory and this means that if there's no right to appeal in that particular case then a reference should be made so in Costa and enel the um question of the money that was due to be paid was actually very small I think it was about two l or sort of one 90 and because it was such a small amount of money that case was never going to go to the highest court in Italy um so it the case went as far as it could go for that particular amount of money but because it couldn't go any further after that point um it then got referred and there was a question of it must be referred because there was no further right of appeal in that particular type of case and I think that's the key thing to remember so just because it's not the highest court in the land doesn't mean that the there isn't an obligation to um give a reference under article 267 uh there's also instances finally where the court of tribunal should not refer and this comes down to the ACTA Clair principle which was outlined in silit in 1982 basically all we're saying here is that where the answer is really obvious there's no need to give a reference so when is the when is it obvious well often if the court of justice of the European Union has already given an interpretation of a particular word or phrase in a treaty or regulation or directive there's no need to refer the question again because they'll just give the same answer so in deosta the 1963 case um the question that was referred had already been answered in the famous case of Van gendan lose and the court said well there's no need for you to um ask us this question again because we've already answered it and so the national Court should just apply the interpretation that had already been given in Van gend and loose um I think that courts have to be careful though when they're doing this uh Crown against hen and Derby from 1978 is a good warning shot to National courts the court of appeal thought that the answer was obvious and that the court of justice had already given an interpretation they made a decision on that basis the case then got appealed to the House of Lords as it was then and House of Lords said well actually we do think that this needs to be referenced the case went to the court of justice of the European Union they provided a different interpretation to the one the court of appeal had thought was obvious and so the case turned out completely differently in the House of Lords once an article 267 reference had been made so even though the act of Clair principle does exist can be used and is often used in National courts where an interpretation has already been given National courts should also be wary of making the decision themselves and if there is any doubt then they should refer the question to the court of justice of the European Union so once the court of justice of the European Union has sort of made an interpretation or given a definition of a particular word what happens then well the case goes back to the National court and that National Court applies the guidance given by the court of justice to the facts of that particular case and I think this is really important um as I've said later on um it has to make the national Court makes the final decision in the case so it's not for the court of justice of the European Union to apply a particular interpretation or definition to the case they just give the interpretation or the definition and it's the national court that actually applies it and then makes the final decision in the case about who wins and who gets damages etc etc so Arsenal and Reed 2001 is an interesting case because Arsenal actually won for a change um and in this particular case the court of justice overstepped the mark and gave uh basically an almost a direct answer to the application of the interpretation that they' given and the English courts turned around and said well actually we don't agree with the interpretation that you've given and the way that you've applied that particular interpretation now the case eventually went on appeal and they did join up with the court of justice in the of the European Union in the end and they did all agree so the UK court and the EU Court did agree in the end but nevertheless the case does establish the important principle that there should be a separation between the EU Court which provides the interpretation and the national Court which applies that interpretation to the particular case and so that's literally it the national court at the bottom here says what does this mean goes up to the EU Court who say this is what it means they send it back down to the National Court who say cool thanks bro and apply to the actual case um thanks very much for watching leave a comments or questions in the box below um like And subscribe for more videos right I'll see you soon guys take care bye