Preliminary ruling proceedings — recommendations to national courts
Recommendations to national courts on the use of the preliminary ruling procedure
Article 267 of the Treaty on the Functioning of the European Union (TFEU)
WHAT IS THE AIM OF THE RECOMMENDATIONS AND OF ARTICLE 267 OF THE TFEU?
These recommendations explain to courts and tribunals in EU countries the purposes of a procedure which entitles them, under Article 267 of the TFEU to refer to the Court of Justice of the EU (CJEU) for a preliminary ruling. This procedure is 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.
The recommendations also detail the scope of the procedure and the form in which national courts should submit their referral.
They supplement Articles 93 to 118 of the CJEU’s Rules of Procedure.
Significance of the preliminary ruling procedure
This procedure is considered useful when, in a case before a national court, a question of interpretation which 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
Subject matter and scope
Importantly, a referral must concern the interpretation or validity of EU law not 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 EU countries.
Timing of referral and the staying of 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 which it raises.
The national proceedings must be stayed until the CJEU has given its 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 EU countries to submit their observations.
Article 94 of the CJEU’s Rules of Procedure specifies the content of the request which should accompany the referring court’s questions, the essential points of which are summarised in the annex to the recommendations.
All referrals must be dated, signed and sent by registered post to the CJEU’s registry in Luxembourg.
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.
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 105-107 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 to allow EU countries 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 may initially be emailed or faxed to the CJEU registry.
FROM WHEN DO THE RECOMMENDATIONS APPLY?
They replace previous recommendations issued in 2012 and apply as of 25 November 2016.
Expedited procedure: a procedure where the nature of the case and exceptional circumstances require it to be handled quickly.
Urgent procedure: a procedure applying only in cases involving questions 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 CJEU.
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)
Rules of Procedure of the Court of Justice (OJ L 265, 29.9.2012, pp. 1-42)
Amendment of the Rules of Procedure of the Court of Justice (OJ L 173, 26.6.2013, p. 65)
last update 31.10.2017