Preliminary ruling

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"Prejudicial question" redirects here. For the legal term used in criminal, civil and common law, see Prejudice (legal term).

A preliminary ruling is a decision of the European Court of Justice (ECJ) on the interpretation of European Union law, given in response to a request (preliminary reference) from a court or tribunal of a European Union Member State. A preliminary ruling is a final determination of EU law, with no scope for appeal. The ECJ hands down its decision to the referring court, which is then obliged to implement the ruling.

Preliminary rulings are issued by the ECJ. The Treaty of Lisbon provides that jurisdiction may be delegated to the General Court, but this provision has yet to be put into effect.[1] If, as in Factortame, the ECJ holds that a Member State's legislation conflicts with EU law, the Member State will be required to "disapply" such law, but the ECJ may not itself amend the Member State's legislation.

Preliminary Rulings make up the bulk of CJEU business, as few persons have locus standi to litigate in the Luxembourg court. "Privileged parties" that do have standing include all Member States and EU Institutions, but normally a private person or "undertaking"[2] will have standing only if they are the addressee of an EU Decision.

Procedure[]

If a court or tribunal of a Member State finds a provision of EU law to be ambiguous, equivocal or unclear, it may seek a preliminary ruling; and if that court or tribunal is one from which there is no appeal, the court must make an application. In either case, the domestic court be adjourned until the ECJ ruling is issued. The question to the ECJ must be short and succinct, but may be accompanied by documents explaining the context and circumstances of the issue. The ECJ may decline to give judgement in the absence of a genuine dispute, on the basis that it will not consider "moot points".[3]

Article 267 of the Treaty on the Functioning of the European Union provides:

The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:

  • (a) the interpretation of the Treaties;
  • (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;

Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.

Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.

If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay.[4]

This is qualified by Article 275 TFEU (excluding Common Foreign and Security Policy) and Article 276 TFEU (excluding member state acts in the area of freedom, security and justice).

Right and duty to refer for a preliminary ruling[]

The highest court in a jurisdiction must refer; lower courts may refer: Article 267 TFEU. For the rules in the United Kingdom while it was an EU member state, see s 2(1) European Communities Act 1972 (UK)[5] and Part 68 Civil Procedure Rules.[6][better source needed]

Article 267 of the Treaty on the Functioning of the European Union (TFEU) establishing the preliminary reference procedure differentiates between the right and the duty of national courts to seek a preliminary ruling. Under the discretionary reference stipulated in Article 267(2) TFEU, a national "court or tribunal" may ask the ECJ to give a preliminary ruling if it considers that a decision on the question is "necessary" to enable it to give a judgment in a particular case. The obligatory reference (duty to refer) is established in two cases: with respect to national courts adjudicating at last instance (Article 267(3) TFEU) and with respect of all courts faced with a question of the validity of EU law.

The function of the obligation to refer is "to prevent a body of national case law not in accord with the rules of [EU] law from coming into existence in any member state": Case 107/76 Hoffmann-La Roche v Centrafarm at 5.[7] Both the highest court in a member state and the Benelux court has the obligation to refer: Case C-337/95 Parfums Christian Dior v Evora.[8]

The obligation of national courts of last instance to refer for a preliminary ruling when a question of the interpretation of EU law arises is subject to certain exceptions. In accordance with the jurisprudence of the Court, a national court is relieved from the duty to refer (i) when EU law questions are not relevant to the decision in the main proceedings, (ii) in a situation before a national court is "materially identical with a question which has already been subject of a preliminary ruling in a similar case" ('acte éclairé'), or (iii) when the proper interpretation of EU law is "so obvious as to leave no scope for any reasonable doubt" ('acte clair').[9]

Courts that may ask questions[]

What constitutes a "court or tribunal" is a matter of Union law and it is not to be determined by reference to national law.[10] In determining whether or not a body is a "court or tribunal of Member State" the European Courts will take a number of issues into account, namely whether—

  1. it is established by law,
  2. it is permanent,
  3. its jurisdiction is compulsory,
  4. it has an inter partes procedure,
  5. it applies rules of law, and
  6. it is independent.[11]

Only a body that "is established by law ... is permenant ... [whose] jurisdiction is compulsory ... [whose] procedure is inter partes ... applies rules of law and ... is independent" can be a court or tribunal which may refer: Case C-53/03 Syfait v GlaxoSmithKlein at 29.[12] Where a body has the right to refer under EU law, this cannot be deprived by national law: Cases 146/73 and 166/73 Rheinmühlen.[13]

However, these criteria are not absolute. In Broekmeulen v Huisarts Registratie Commissie[14] the CJEU ruled that a body established under the auspices of the Royal Netherlands Society for the Promotion of Medicine was a "court or tribunal" within the meaning of the treaty, even though that society was a private association. Also the Benelux Court of Justice was considered a court within this context, as a court common to several (Netherlands, Belgium, Luxembourg) Member States.[citation needed] Also the Unified Patent Court, as a court common to several Member States is expected to be able to ask prejudicial questions.[citation needed]

Grounds[]

Such reference is possible for all EU acts regardless of direct effect: Case C-373/95 Maso and Others v INPS at 28. But the ECJ will not hear preliminary references arising out of hypothetical disputes: Case 244/80 Foglia v Novello.

Interpreting non-EU instruments[]

The European Court of Justice is competent to give rulings regarding the interpretation of treaties to which the European Union is a party, as those treaties are considered to be part of EU law. Its decisions are in such a case only binding on the EU and not on other parties to the agreement.

ECJ claims jurisdiction to interpret international agreements concluded by the Council, since they are acts of an EU institution: Case 181/73 Haegeman v Belgium. This extends to the GATT, for which EU has substituted the member states: Case C-267/81 SPI. This applies to mixed agreements, even when the issue only partly falls within EU law: Case C-53/96 Hermès v FHT at 32. ECJ claims jurisdiction even over acts of institutions established by an association agreement: Case C-192/89 Sevince.

In contrast, this claim does not extend to international agreements concluded by a member state before EU accession that conflicts with EU law: Case C-158/91 Levy. ECJ jurisdiction is confined to EU law only, and ECJ cannot consider the extent of reference to EU law by national provisions, that being a matter of national law: Case C-297/88 Dzodzi at 42. ECJ does not interpret national law worded identically to EU provisions: Case C-346/93 Kleinwort Benson v City of Glasgow District Council.

The ECJ is also competent regarding the application of certain treaties between EU member states, although the procedure may be subject to different procedures. Two such treaties are the 1968 Brussels Convention on jurisdiction in civil and commercial matters and the 1980 Rome convention on applicable law (now mostly replaced by the Brussels I and Rome I regulations respectively).

A peculiarity relates to arbitration on the Brexit withdrawal agreement, where arbiters have to ask for a preliminary ruling in matters of EU law which is binding upon both the EU and the UK. Based on the same agreement, UK courts must/may – in cases involving Northern Ireland – ask for a preliminary ruling regarding EU applied in Northern Ireland (mainly related to trade in goods).[15]

Effects[]

The ECJ judgment in a reference is declaratory; remedies, costs, etc. are matters for the national court. The ECJ may choose to rule only on the validity and interpretation of EU law, leaving the application to the facts to the national court which made the reference: e.g. Case 36/74 Walrave and Koch v Union Cycliste Internationale. Alternatively, it may choose to rule very closely to the facts in the case: e.g. Case 32/75 Cristini v SNCF.

If ECJ has already rule on a point in a previous case, there is no obligation to refer: Case 28/62 Da Costa. It is then res judicata (at least in the weak sense) and binds the national court a quo which made the reference, and future similar cases on the same issue requires no further reference where the answer is “so obvious as to leave no scope for any reasonable doubt”: Case 283/81 CILFIT, ECJ Rules of Procedure Article 104(3). “Where national legislation has been the subject of different relevant judicial constructions, some leading to the application of that legislation in compliance with [EU] law, others leading to the opposite application, it must be held that, at the very least, such legislation is not sufficiently clear to ensure its application in compliance with [EU] law”: Case C-129/00 Commission v Italy at 33.

The Court of Justice judgment has the force of res judicata. It is binding not only on the national court on whose initiative the reference for a preliminary ruling was made but also on all of the national courts of the Member States. In the United Kingdom when it was an EU member state, the res judicata was in the strong sense: a previous ECJ ruling would bind UK courts: s 3(1) European Communities Act 1972.

In the context of a reference for a preliminary ruling concerning validity, if the European instrument is declared invalid all of the instruments adopted based on it are also invalid. It then falls to the competent European institutions to adopt a new instrument to rectify the situation.[16]

Similar systems[]

The possibility to ask for a preliminary ruling is also embedded in other legal systems.

  • The courts of Belgium, the Netherlands and Luxembourg may ask "questions regarding the interpretation of the law" to the Benelux Court of Justice regarding certain Benelux conventions and regulations.
  • Iceland, Liechtenstein and Norway may request the EFTA Court of Justice for an "advisory opinion" regarding the interpretation of the European Economic Area Agreement, as well as EU regulations that apply to those states.

References and footnotes[]

  1. ^ Craig, Paul; de Búrca, Gráinne (2011). EU law: text, cases, and materials (5th ed.). Oxford: Oxford University Press. p. 482. ISBN 9780199576999.
  2. ^ An "undertaking" is EU-speak for a company, partnership or business firm. See TFEU Arts 101 & 102.
  3. ^ Case 244/80, Pasquale Foglia v. Mariella Novello paragraph 18.
  4. ^ Otherwise, an application to the ECJ may take a year or so before the question is answered.
  5. ^ "European Communities Act 1972: Section 2", legislation.gov.uk, The National Archives, 1972 c. 68 (s. 2)
  6. ^ "Civil Procedure Rules 1998, Part 68: References to the European Court". Archived from the original on 15 February 2012. Retrieved 23 February 2022.
  7. ^ "Hoffmann-La Roche AG v Centrafarm Vertriebsgesellschaft Pharmazeutischer Erzeugnisse mbH". 24 May 1977. Retrieved 23 February 2022 – via EUR-Lex.
  8. ^ "Parfums Christian Dior SA and Parfums Christian Dior BV v Evora BV". 4 November 1997. Retrieved 23 February 2022 – via EUR-Lex.
  9. ^ Limante, Agne (2016). "Recent Developments in the Acte Clair Case Law of the EU Court of Justice: Towards a more Flexible Approach". JCMS: Journal of Common Market Studies. doi:10.1111/jcms.12434.
  10. ^ Case C-24/92, Corbiau v Administration des Contributions, paragraph 15.
  11. ^ "Dorsch Consult Ingenieurgesellschaft mbH v Bundesbaugesellschaft Berlin mbH". 17 September 1997. Retrieved 23 February 2022 – via EUR-Lex.
  12. ^ "Synetairismos Farmakopoion Aitolias & Akarnanias v GlaxoSmithKline plc and GlaxoSmithKline AEVE". 31 May 2005. Retrieved 23 February 2022 – via EUR-Lex.
  13. ^ "Rheinmühlen-Düsseldorf v Einfuhr- und Vorratsstelle für Getreide und Futtermittel". 12 February 1974. Retrieved 23 February 2022 – via EUR-Lex.
  14. ^ "Case 246/80, C. Broekmeulen v Huisarts Registratie Commissie". 6 October 1981. Retrieved 23 February 2022 – via EUR-Lex.
  15. ^ "The Protocol on Ireland/Northern Ireland Contents. Chapter 11: Implementation, application, supervision and enforcement, and other provisions (Articles 12, 13, 16, 17 and 19)". British Parliament. Retrieved 31 December 2020.
  16. ^ "EUR-Lex". eur-lex.europa.eu. Retrieved 1 December 2016.

See also[]

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