Preliminary ruling proceedings – recommendations to national courts

SUMMARY OF:

WHAT IS THE AIM OF THE RECOMMENDATIONS AND OF ARTICLE 267 OF THE TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION AND ARTICLE 19(3) OF THE TREATY ON EUROPEAN UNION?

The 2019 recommendations:

explain to courts and tribunals in the European Union (EU) Member States the purposes of a procedure that entitles them, under Article 267 of the Treaty on the Functioning of the European Union and Article 19(3)(b) of the Treaty on European Union, to refer to the Court of Justice of the European Union (CJEU) for a preliminary ruling*;
set out the scope of the procedure and the form in which national courts should submit their referral;
supplement Articles 93 to 118 of the CJEU’s rules of procedure (further details in the summary);
replace previous recommendations issued in 2018.

KEY POINTS

Significance of the preliminary ruling procedure

This procedure is considered useful when, in a case before a national court, a question of interpretation that is new and of general interest for the uniform application of EU law is raised, or where the existing case-law does not appear to give the necessary guidance to deal with a new legal situation.

Structure of the recommendations

A set of recommendations applies to all requests for a preliminary ruling and a further set specifically applies to expedited procedures* or urgent procedures*.

Who makes the request for a preliminary ruling?

The national court or tribunal before which a dispute is brought takes sole responsibility for determining both the need for a request for a preliminary ruling and the relevance of the questions it submits to the CJEU.

Courts submitting a referral should, among other things:

be established by law and be permanent;
have compulsory jurisdiction;
apply the rules of law; and
be independent.

Subject matter and scope

Importantly, a referral must concern the interpretation or validity of EU law. It must not concern the interpretation of national law nor issues of fact raised in the main proceedings.
The CJEU may only give a ruling if EU law applies to the case in the main proceedings.
The CJEU does not itself apply EU law to a dispute brought by a referring court, as its role is to help resolve it; the role of the national court is to draw conclusions from the CJEU’s ruling.
Preliminary rulings are binding both on the referring court and on all courts in Member States.

Interaction between the reference for a preliminary ruling and the national proceedings

A referral should be made as soon as it is clear that a CJEU ruling is necessary for a national court to give judgment and when it is able to define in sufficient detail the legal and factual context of the case and the legal issues that it raises.
The national proceedings must be suspended until the CJEU has given its ruling.
The referring court must inform the CJEU of any procedural step that may affect the referral and, in particular, of any discontinuance or withdrawal, or of any amicable settlement of the dispute in the main proceedings, and of any other event leading to the termination of the proceedings. It must also inform the CJEU of any decision delivered in the context of an appeal against the order for reference and of the consequences of that decision for the request for a preliminary ruling.

Form and content of the referral

The referral must be drafted simply, clearly and precisely given that it will need to be translated to allow other Member States to submit their observations.
Article 94 of the CJEU’s rules of procedure specifies the content of the request that should accompany the referring court’s questions, the essential points of which are summarised in the annex to the recommendations. If one or more of these requirements are not met, the CJEU may find it necessary to decline jurisdiction to give a preliminary ruling on the questions referred or dismiss the request for a preliminary ruling as inadmissible.
The referring court may briefly set out the main arguments of the parties to the main proceedings. However, it should be noted that only the request for a preliminary ruling will be translated, not any annexes to that request.
The referring court may also briefly state its view on the answer to be given to the questions referred for a preliminary ruling. That information may be useful to the CJEU, particularly where it is called upon to give a preliminary ruling in an expedited or urgent procedure.
The questions referred to the CJEU for a preliminary ruling must appear in a separate and clearly identified section of the order for reference, preferably at the beginning or the end. It must be possible to understand them on their own terms, without it being necessary to refer to the statement of the grounds for the request.
The request for a preliminary ruling must be in typewritten form and the pages and paragraphs of the order for reference must be numbered.

Data protection and anonymisation of the request for a preliminary ruling

To ensure optimal protection of personal data in the CJEU’s handling of the case, the referring court is invited to anonymise the case by replacing the names of individuals referred to in the request , for example using initials or a combination of letters, and by editing out information that might enable them to be identified.

Transmission to the CJEU of the request for a preliminary ruling

All referrals must be dated, signed and sent electronically or by post to the CJEU’s registry in Luxembourg.
The CJEU recommends that national courts and tribunals use the e-Curia application.
The request for a preliminary ruling must reach the registry together with all the relevant documents and documents useful for the CJEU’s handling of the case and, in particular, the precise contact details for the parties to the main proceedings and their representatives, if any, along with the file of the case in the main proceedings or a copy of it.

Costs and legal aid

Preliminary ruling proceedings before the CJEU are free of charge.
The referring court rules on the costs incurred by the parties, where necessary.
If a party to the main proceedings has insufficient means, the CJEU may grant that party legal aid to cover the costs, particularly those in respect of its representation, which it incurs before the CJEU. That aid can, however, be granted only if the party in question is not already receiving aid under national rules or to the extent to which that aid does not cover, or covers only partly, costs incurred before the CJEU.

Role of the CJEU registry

The registry liaises with the referring court during the proceedings and sends it copies of all procedural documents and requests for information.
At the end of the proceedings, the registry sends the CJEU’s decision to the referring court. The referring court should keep the registry informed of any action taken and of its final decision in the case.

Expedited and urgent referrals

Under Articles 105–114 of its rules of procedure, the CJEU may decide that some referrals should be handled by means of expedited or urgent procedures.
Deadlines are shorter, for example, the time allowed for Member States to submit observations in the case of expedited referrals.
The referring court must justify the urgency, pointing out the potential risks in following the ordinary procedure.
Requests for an expedited or urgent procedure should be sent by means of the e-Curia application or by email.

FROM WHEN DO THE RECOMMENDATIONS APPLY?

They have applied since 8 November 2019.

BACKGROUND

For further information, see:

Court of Justice procedures (Court of Justice)
Urgent preliminary ruling procedure and expedited procedure – factsheet (Court of Justice of the European Union).

KEY TERMS

Preliminary ruling. A procedure used in cases where the interpretation or validity of an EU law is in question, and:

where a decision is necessary for a national court to give judgment; or
where there is no judicial remedy under national law.

Expedited procedure. A procedure where the nature and exceptional circumstances of the case require it to be handled quickly. An expedited procedure must be sought only when particular circumstances create an emergency that warrants a quick CJEU ruling on the questions referred. This could arise, for example, if there is a serious and immediate danger to public health or to the environment, which a prompt decision by the CJEU might help to avert, or if particular circumstances require uncertainties concerning fundamental issues of national constitutional law and of EU law to be resolved within a very short time.

Urgent procedure. A procedure applying only in cases involving questions relating to freedom, security and justice. In particular, it limits the number of parties permitted to submit written observations and allows, in cases of extreme urgency, for the written stage of the procedure to be omitted before the CJEU.

MAIN DOCUMENTS

Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (OJ C 439, 25.11.2016, pp. 1–8).

Consolidated version of the Treaty on the Functioning of the European Union – Part Six – Institutional and financial provisions – Title I – Institutional provisions – Chapter 1 – The institutions – Section 5 – The Court of Justice of the European Union – Article 267 (ex-Article 234 TEC) (OJ C 202, 7.6.2016, p. 164).

Consolidated version of the Treaty on European Union – Title III – Provisions on the institutions – Article 19 (OJ C 202, 7.6.2016, p. 27).