When Are National Courts Obliged to Refer Questions?

Chapter 6 defines when a national court must make a preliminary reference. In principle, a national court whose decision cannot be appealed against (a court of last instance) is obligated to make a reference for a preliminary ruling if the main proceedings give rise to a question about the interpretation or validity of EU law. The chapter analyses when a national court is regarded as being a court of last instance and it analyses when a court of last instance is exempt from the obligation to make a reference. Particular focus is upon the acte éclairé and acte clair doctrines. Chapter 6 also examines when national courts, other than those of last instance, have a duty to make a reference. The chapter also considers the legal consequences of a national court failing to comply with its obligation to make a reference; in this respect it considers the question of how a failure to make a preliminary reference may affect the validity of a national judgment, the duty to reopen the case file, the obligation to pay damages, the possibility that the Commission will initiate infringement proceedings, and the possibility that such failure will constitute an infringement of the European Convention on Human Rights.

Which Bodies May Refer?

Chapter 3 discusses which bodies may make preliminary references. Only ‘a court or tribunal of a Member State’ has this right. Chapter 3 examines a number of possible criteria; namely is the referring body established by law, does it have permanent character, is it independent, is the body’s jurisdiction compulsory, does it use an adversary procedure, does it make its decisions on the basis of legal rules, can it issue decisions of a judicial nature in the context of the preliminary reference, does the members of the body include lawyers, does the question leading to the preliminary reference arise in connection with the settlement of a dispute, and are there other judicial solutions to the conflict in question? Chapter 3 next considers what types of bodies may make preliminary references. This examination covers, ordinary courts, international courts and courts with jurisdiction in more Member States, arbitration tribunals, administrative authorities and ombudsmen, and private bodies. Chapter 3 also considers when a court is of an EU Member State. Moreover, Chapter 3 examines whether a court of a Member State may not make a preliminary reference because its activities are not of a judicial nature or because, under national law, it is precluded from doing this.

When Ought a Reference for a Preliminary Ruling be Made?

Chapter 7 concerns the situation where the national court has discretion in its decision as to whether or not it should refer a preliminary question to the Court of Justice. It analyses (1) the different criteria that form the basis for the national court’s discretionary decision, (2) to what extent EU law interferes with that discretion, and (3) at what time in the proceedings it is best to make a preliminary reference. The chapter first identifies the different criteria that in general form the basis for the national court’s decision as to whether or not it should make use of the preliminary reference procedure. It then deals with the particular situation where a similar question is already pending before the Court of Justice or where the national court has a cluster of parallel cases before it and must decide whether to make a preliminary reference in all cases or only in one or a few test cases. Next, it discusses to what extent a national court not sitting as a court of last instance should refrain from posing a preliminary question because such a question could also be posed during a possible appeal procedure. Finally, chapter 7 examines at what stage of the proceedings it is most appropriate to refer a preliminary question and discusses to what extent points of fact and national law ought to be clarified before it is decided whether to make use of the preliminary procedure.

Variations in Member State Use of Preliminary References

Chapter 2 analyses the variations in frequency of preliminary references to the European Court of Justice from the different Member States. This analysis focuses upon two factors; firstly the structural factor that a relevant case must be pending before a national court in an EU Member State (structural factor), and secondly a behavioural factor that the national judge/judges hearing the national case must choose to make a preliminary reference (behavioural factor). The chapter determines each of these two factors and it concludes that about three-quarters of the total variation in preliminary references across Member States can be explained exclusively on the basis of total number of cases (a component of the structural factor). If we fully account for the structural factor and also account for the component whether the Member States may be categorised as either civil law or common law we are able to explain almost 90% of the total variation.

The Procedure before the Court of Justice

Chapter 10 contains an analysis of the procedure before the Court of Justice and discusses how written and oral observations may be presented. The chapter examines and explains the following stages: (i) translation of the reference into all the official languages, and the subsequent publication of a summary of the reference in the Official Journal of the European Union, (ii) notification of the reference to the parties to the main proceedings, the Member States, the EU institutions, the EFTA Surveillance Authority, Norway, Iceland, and Liechtenstein as well as, in some cases, other third countries, (iii) submission of written observations, (iv) translation of the written observations into French (working language of the Court of Justice) and appointment of a Judge-Rapporteur Advocates General, (v) notification of the written observations in their original language, in French and in the language of the case, (vi) drawing up of a Preliminary Report (rapport préalable), (vii) oral procedure, (viii) deliberation and voting by the judges and preparation of the judgment, and (ix) translation of the judgment.

The Preliminary Ruling

Chapter 11 examines the preliminary ruling as such, including the extent to which the Court of Justice reformulates the preliminary question. It considers when the Court of Justice renders the preliminary ruling as a judgment and when as an order. The chapter also examines when the Court narrows down the preliminary question, when it includes other EU law provisions, when it provides alternative answers, and when it includes issues that do not form part of the preliminary reference, but nevertheless may be relevant for the referring court’s decision of the main action. Moreover, chapter 11 analyses when and how the Court of Justice may tailor its preliminary ruling to the facts of the case before the referring court.

When Can a Reference for a Preliminary Ruling be Made?

Chapter 5 discusses the requirement that an answer to the preliminary question must be relevant for the resolution of the main proceedings. It analyses when a preliminary ruling must be assumed to be irrelevant to the decision in the main proceedings, and it discusses the so-called Foglia principle according to which the Court declines jurisdiction to reply to questions of interpretation which are submitted to it within the framework of a contrived case. Chapter 5 also examines when a preliminary reference is precluded because the same issue is, has been, or could be subject to a direct action before the Court of Justice. Here it first examines the relationship between, on the one hand, the preliminary procedure and, on the other hand, Articles 258 and 259 TFEU concerning infringement proceedings. Next, it analyses the relationship between the preliminary procedure and Article 263 TFEU concerning actions for annulment before the Court of Justice (TWD-doctrine).

What Questions Can Be Referred?

Chapter 4 examines which questions can be referred for a preliminary ruling. The European Court of Justice has jurisdiction to give preliminary rulings on the interpretation of the Treaties, and on the validity and interpretation of acts of the institutions, bodies, offices, or agencies of the Union. It does not have jurisdiction to rule on the interpretation or validity of international law or national laws, and it is prevented from giving a binding ruling on the facts that are put before a national court. Chapter 4 explains the reference to ‘the Treaties’ as well as the meanings of ‘acts’, ‘institutions, bodies, offices or agencies’, and ‘validity’. This examination includes police and judicial cooperation, common foreign and security policy, the Euratom Treaty and the ECSC Treaty, and it includes preliminary references concerning international agreements. The chapter also examines the extent to which the Court of Justice can give its opinion on the facts or the content of national law in connection with a reference for a preliminary ruling or on questions that concern circumstances that arise before a Member State’s accession to the European Union or where the preliminary ruling is rendered after a Member State’s withdrawal from the Union (eg Brexit).

The Form and Content of a Reference

The procedure for preliminary references is relatively unregulated. The Court of Justice has, however, gradually laid down a number of requirements for how a reference should be formulated. Chapter 8 identifies these requirements and makes recommendations as to how a reference should be framed. The referring court must ensure that the order for reference is thorough. Thus, the order should clearly identify the question referred, it should provide information both about the facts of the case and about national law, and the reference must be understandable without the need to refer to other documents. Chapter 8 also examines the urgent preliminary ruling procedure in the area of freedom, security and justice.

Proceedings before the Referring Court after a Reference has been Made

Chapter 9 provides an account of the steps that a national court may take after having made a preliminary reference. Making a preliminary reference does not imply that the case before the national court is transferred to the Court of Justice. On the contrary, the main proceedings remain pending before the referring court and that court thus retains jurisdiction to take any procedural measures which it is empowered to take under national law. A decision to make a preliminary reference may also be appealed to a superior national court, but, as a main rule, the superior court cannot overturn the lower court’s decision to make a preliminary reference. A national court may also order interim relief under EU law in connection with a preliminary reference. In this respect, the national court must consider the conditions for granting interim relief: (i) doubt as to the validity (fumus boni iuris), (ii) urgency, and (iii) balancing of the interests.