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The reference for a preliminary ruling

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The reference for a preliminary ruling

The reference for a preliminary ruling is a procedure exercised before the Court of Justice of the European Union. This procedure enables national courts to question the Court of Justice on the interpretation or validity of European law. The reference for a preliminary ruling therefore offers a means to guarantee legal certainty by uniform application of EU law.

ACT

Recommendations to national courts in relation to the initiation of preliminary ruling proceedings [Official Journal C 338 of 6.11.2012].

SUMMARY

The reference for preliminary ruling forms part of the procedures which may be exercised before the Court of Justice of the European Union (CJEU). This procedure is open to all Member States’ national judges. They may refer a case already underway to the Court in order to question it on the interpretation or validity of European law.

In contrast to other judicial procedures, the reference of a preliminary ruling is therefore not a recourse taken against a European or national act, but a question presented on the application of European law.

The reference for a preliminary ruling thus promotes active cooperation between the national courts and the Court of Justice and the uniform application of European law throughout the EU.

In 2012, the Court of Justice issued recommendations to the national courts, which are not binding but which aim to supplement the Rules of Procedure of the Court (Articles 93 to 118). These recommendations are also intended to provide guidance to Member State courts as to whether it is appropriate to make a reference for a preliminary ruling, and to provide them with practical information on the form and effects of such a reference for a ruling.

Nature of references for a preliminary ruling

Any national court to which a dispute in which the application of a rule of European law raises questions (original case) has been submitted can decide to refer to the Court of Justice to resolve these questions. There are two types of reference for a preliminary ruling:

  • a reference for a ruling on the interpretation of the European instrument (primary law and secondary law): the national judge requests the Court of Justice to clarify a point of interpretation of European law in order to be able to apply it correctly;
  • a reference for a preliminary ruling on the validity of a European instrument of secondary law: the national judge requests the Court of Justice to check the validity of an act of European law.

The reference for a preliminary ruling is therefore a reference from one judge to another. Although a referral to the Court of Justice may be requested by one of the parties involved in the dispute, the decision to do so rests with the national court.

In this respect, Article 267 of the Treaty on the Functioning of the EU (TFEU) specifies that national courts which act as a final resort, against whose decisions there is no judicial remedy, are obliged to make a reference to the Court of Justice for a preliminary ruling, unless the Court has already ruled on the matter or the interpretation of the EU rule of law in question is obvious.

In contrast, national courts which do not rule in final resort are not obliged to exercise the reference for a preliminary ruling, even if one of the parties requests it.

In any case, all national courts must immediately refer a matter to the Court of Justice in cases of doubt regarding the interpretation of a European provision. However, they must submit to the Court a reference for a preliminary ruling when they have doubts regarding the validity of an act issued by a Union institution, body, office or agency.

The Court of Justice only gives a decision on the constituent elements of the reference for a preliminary ruling made to it. The national court therefore remains competent for the original case.

On principle, the Court of Justice must answer the question put to it. It cannot refuse to answer on the grounds that this response would be neither relevant nor timely as regards the original case. It can, however, refuse if the question does not fall within its competence.

Expedited procedure and urgent procedure

The Court decides whether to apply these procedures, in principal on a reasoned request by the referring court.

In accordance with Article 23a of the Statute of the Court of Justice, a reference for a preliminary ruling may be subject to an expedited procedure when the nature of the case and exceptional circumstances require it to be handled quickly.

An urgent preliminary ruling procedure only applies in areas relating to freedom, security and justice. In particular, it limits the number of parties authorised to submit written observations and allows, in cases of extreme urgency, for the written stage of the procedure to be omitted before the Court.

Effects of the reference for a preliminary ruling on national proceedings

The submission of a reference for a preliminary ruling calls for national proceedings to be stayed until the Court has given its ruling.

General scope of preliminary rulings

The Court of Justice Decision 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 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.

RELATED ACTS

Rules of Procedure of the Court of Justice of 25 September 2012 [OJ L 265 of 29.9.2012], as amended on 18 June 2013 [OJ L 173 of 26.6.2013, p.65].

Last updated: 15.01.2014

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