Preliminary Rulings

Preliminary Rulings in Europe

Preliminary Rulings in the EU (Article 267 TFEU)

Content about Preliminary Rulings from the publication “The ABC of European Union law” (2010, European Union) by Klaus-Dieter Borchardt.

This is the procedure whereby the national courts can seek guidance on Union law from the Court of Justice. Where a national court is required to apply provisions of Union law in a case before it, it may stay the proceedings and ask the Court of Justice for clarification as to the validity of the Union instrument at issue and/or the interpretation of the instrument and of the Treaties. The Court of Justice responds in the form of a judgment rather than an advisory opinion; this emphasises the binding nature of its ruling. The preliminary ruling procedure, unlike the other procedures under consideration here, is not a contentious procedure but simply one stage in the proceedings that begin and end in the national courts.

Context of Preliminary Rulings in the European Union

The object is to secure a uniform interpretation of Union law and hence the unity of the EU legal order. Alongside the latter function, the procedure is also of importance in protecting individual rights. The national courts can only assess the compatibility of national and Union law and, in the event of any incompatibility, enforce Union law – which takes precedence and is directly applicable – if the content and scope of Union provisions are clearly set out. This clarity can normally only be brought about by a preliminary ruling from the Court of Justice, which means that proceedings for such a ruling offer Union citizens an opportunity to challenge actions of their own Member State which are in contravention of EU law and ensure enforcement of Union law before the national courts. This dual function of preliminary ruling proceedings compensates to a certain extent for the restrictions on individuals directly filing actions before the Court of Justice and is thus crucial for the legal protection of the individual. However, success in these proceedings depends ultimately on how ‘keen’ national judges and courts are to refer cases to a higher authority.

More about Preliminary Rulings in the European Union

Subject matter: The Court of Justice rules on the interpretation of instruments of Union law and examines the validity of the Union institutions’ acts of legal significance. Provisions of national law may not be the subject of a preliminary ruling. In proceedings for a preliminary ruling, the Court of Justice is not empowered to interpret national law or assess its compatibility with Union law. This fact is often overlooked in the questions referred to the Court of Justice, which is called on to look at many questions specifically concerned with the compatibility of provisions of national and Union law, or to decide on the applicability of a specific provision of Union law in proceedings pending before a national court. Although these questions are in fact procedurally inadmissible, the Court of Justice does not simply refer them back to the national court; instead, it reinterprets the question referred to it as a request by the referring court for basic or essential criteria for interpreting the Union legal provisions concerned, thus enabling the national court to then give its own assessment of compatibility between national and Union law. The procedure adopted by the Court of Justice is to extract from the documentation submitted – particularly the grounds for referral – those elements of Union law which need to be interpreted for the purpose of the underlying legal dispute.

Other Aspects

Capacity to proceed: The procedure is available to all ‘courts of the Member States’. This expression should be understood within the meaning of Union law and focuses not on the name but rather on the function and position occupied by a judicial body within the systems of legal protection in the Member States. On this basis, ‘courts’ are understood to mean all independent institutions (i.e. not subject to instructions) empowered to settle disputes in a constitutional state under due process of law. According to this definition, the constitutional courts in the Member States and dispute-settling authorities outside the state judicial system – but not private arbitration tribunals – are also entitled to refer cases. The national court’s decision whether or not to make a reference will depend on the relevance of the point of Community law in issue for the settlement of the dispute before it, which is a matter for the national court to assess. The parties can only request, not require, it to refer a case. The Court of Justice considers the relevance of the point solely in terms of whether the question concerned is amenable to referral (i.e. whether it actually concerns the interpretation of the Union Treaties or the legal validity of an act by a Union institution) or whether a genuine legal dispute is involved (i.e. whether the questions on which the Court of Justice is to give its legal opinion in a preliminary ruling are merely hypothetical or relate to a point of law that has already been settled). It is exceptional for the Court to decline to consider a matter for these reasons because, given the special importance of cooperation between judicial authorities, the Court exercises restraint when applying these criteria. Nevertheless, recent judgments of the Court show that it has become more stringent as regards eligibility for referral in that it is very particular about the already established requirement that the order for referral contain a sufficiently clear and detailed explanation of the factual and legal background to the original proceedings, and that if this information is not provided it declares itself unable to give a proper interpretation of Union law and rejects the application for a preliminary ruling as inadmissible.

Details

Obligation to refer: A national court or tribunal against whose decision there is no judicial remedy in national law is obliged to refer. The concept of right of appeal encompasses all forms of legal redress by which a court ruling may be reviewed in fact and in law (appeal) or only in law (appeal on points of law). The concept does not, however, encompass ordinary legal remedies with limited and specific effects (e.g. new proceedings, constitutional complaint). A court obliged to refer a case may only avoid such referral if the question is of no material importance for the outcome of the case before it or has already been answered by the Court of Justice or the interpretation of Union law is not open to reasonable doubt. However, the obligation to refer is unconditional where the validity of a Union instrument is at issue. The Court of Justice made it quite clear in this respect that it alone has the power to reject illegal provisions of Union law. The national courts must therefore apply and comply with Union law until it is declared invalid by the Court of Justice. A special arrangement applies to courts in proceedings for the granting of provisional legal protection. According to recent judgments of the Court of Justice, these courts are empowered, subject to certain conditions, to suspend enforcement of a national administrative act deriving from a Union regulation, or to issue interim orders in order to provisionally determine the arrangements of legal relations while disregarding an existing provision of Union law.

Last Remarks

Failure to discharge the obligation to refer constitutes an infringement of the Union Treaties, which may make the Member State concerned liable to infringement proceedings. In practice, however, the effects of such a course of action are very limited, given that the government of the Member State concerned cannot comply with any order issued by the Court of Justice because the independence of its judiciary and the principle of separation of powers mean that it is unable to give instructions to national courts. Now that the principle of Member States’ liability under Union law for failure to comply with it has been recognised (see next heading), the possibility of individuals filing for damages which may have arisen from the Member State concerned failing to meet its obligation to refer offers better prospects of success.

Effect: The preliminary ruling, issued in the form of a court order, is directly binding on the referring court and all other courts hearing the same case. In practice it also has a very high status as a precedent for subsequent cases of a like nature.


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