Implementing China and Hong Kong’s Preliminary Reference System: Transposability of Article 267 TFEU Principles

Abstract

Article 158(3) of Hong Kong’s post-handover constitution stipulates a preliminary reference procedure that was modelled upon article 267 of the Treaty on the Functioning of the European Union (“TFEU”). In the first 16 years of its life, Hong Kong’s Court of Final Appeal (“CFA”) has through four judgments laid down some principles for implementing the reference procedure. Yet the jurisprudence is unclear and pertinent aspects of the procedure remain undefined. Notwithstanding calls by jurists for the CFA to draw on principles developed by the European Court of Justice (“ECJ”) under article 267 TFEU, there has hitherto been no discussion on how meaningful transposition can take place, given the vast differences in institutional, constitutional and political landscapes between the EU and Chinese contexts. This paper seeks to plug this gap by sketching a set of criteria for evaluating the transposability of article 267 principles to Hong Kong, and applying such criteria to examine how the CFA can borrow from the ECJ’s resources in resolving key issues it faces in implementing article 158(3). This paper will make two points. First, the CFA may borrow a juridical doctrine developed under article 267 TFEU only if the doctrine is in line with the text and purposes of article 158(3) as well as the institutional and constitutional role of the CFA. Secondly, applying such criteria, while some of the ECJ’s principles can assist the CFA in rationalising existing jurisprudence and answering unresolved questions, others, including the acte clair doctrine, are not transposable.