When Can a Reference for a Preliminary Ruling be Made?

5

WHEN CAN A REFERENCE FOR A PRELIMINARY RULING BE MADE?

1. Overview

According to both the second and third paragraphs of Article 267 TFEU, the preliminary reference procedure applies whenever a question concerning EU law is raised before a national court or tribunal. Furthermore, according to the second paragraph of Article 267, the national court or tribunal must consider ‘that a decision on the question is necessary to enable it to give judgment’. In other words, the answer of the Court of Justice to the question referred must be relevant to the decision in the main proceedings, whereas it is not the task of the Court to rule on hypothetical questions. According to the wording of the third paragraph of the provision, there is no corresponding requirement for the relevance of decisions that cannot be appealed to a higher instance. This paragraph only states that ‘[w]here 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’. The formulation notwithstanding, a party to the main proceedings cannot, merely by appealing to the highest instance, use Article 267(3) to force a national court to make a reference to the Court of Justice concerning a matter that is not relevant for the resolution of the dispute.¹ Indeed, as will be shown in this chapter, it is the established practice of the Court to reject such a reference.

The first part of the chapter analyses the practical application of the principle to hypothetical questions. First, we highlight, in section 2, some general points regarding the referring court’s margin of discretion to decide on the relevance of the question referred. Next, we analyse, in section 3, the requirement that the Court of Justice’s ruling is relevant for the specific court that has referred the question. We then examine when a preliminary ruling must be assumed to be irrelevant to the decision in the main proceedings, see section 4. Further, we discuss, in section 5, 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 procedural devices arranged by the parties in order to induce the Court to give its views on problems of EU law which do not correspond to an objective requirement inherent in the resolution of a dispute (contrived cases). Next, we turn to the question as to 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. In this respect, section 6 examines the relationship between, on the one hand, the preliminary procedure and, on the other hand, Articles 258 and 259 TFEU concerning infringement proceedings. Finally, section 7 analyses the relationship between the preliminary procedure and Article 263 TFEU concerning actions for annulment before the Court of Justice (the General Court).

2. General Considerations

2.1. Who Has Jurisdiction to Decide the Relevance of a Preliminary Question?

According to the wording of Article 267(2), it is for the national court or tribunal to decide whether it is necessary to make a reference for a preliminary ruling in order to give judgment. This jurisdiction is naturally linked to the fact that it is the national court which is seized of the substance of the dispute and which must bear the final responsibility for the decision to be taken. The division of roles between the national courts and the Court of Justice provided for in Article 267 thus means that, in principle, the latter does not have jurisdiction to question the reasons for a decision to make a reference. Hence, the clear starting point is that the Court of Justice has to give a ruling whenever the question which is referred by a national court or tribunal concerns the validity or the interpretation of EU acts.²

This allocation of roles, however, neither can nor should be used to refer questions where the reference has no purpose in relation to the main proceedings. In exercising its power of appraisal the national court in collaboration with the Court of Justice fulfils a duty entrusted to them both of ensuring that in the interpretation and application of the Treaty the law is observed. Whilst the spirit of cooperation, which must govern the performance of the duties assigned by Article 267 to the national courts on the one hand and the Court of Justice on the other, requires the latter to have regard to the national court’s proper responsibilities, it also implies that, in the use which it makes of Article 267, the national court should equally have regard to the proper functioning of the Court of Justice in this field. Moreover, Article 267 does not give the latter jurisdiction to answer hypothetical questions, but only to contribute to the solution of actual legal disputes in the Member States.³

Therefore, with a view to verifying its own jurisdiction to give a ruling, the Court of Justice has assumed the jurisdiction to examine the circumstances under which a question has been referred to it. In principle, Article 267 permits the Court of Justice neither to assess the facts of the case nor to review the grounds on which the question submitted for a preliminary ruling is based. Nonetheless, it is for the Court to set the measure whose validity is contested in an EU law context and to examine the criteria for interpretation established by EU law in order to be able to give the national court an adequate answer for the purpose of resolving the dispute in the main proceedings. If this examination shows that the EU law provision which the Court of Justice has been asked to consider clearly is not relevant for deciding the dispute in the main proceedings, the Court of Justice will hold that it is not necessary to give a ruling on the provision.⁴ For the same reason, the Court tries to restrict its interpretation of EU law to the factual situation before the national court, without venturing into other issues the resolving of which is not necessary for the resolution of the case before the national court.⁵

2.2. The Margin of Discretion of the National Courts

Over the last two decades, the Court of Justice has steadily intensified its examination of whether it has jurisdiction to rule on preliminary questions that have no bearing on the resolution of the dispute in the main proceedings. However, the Court only refuses to treat the question as admissible ‘if it is quite obvious’ that the interpretation of EU law or the examination of the validity of a rule of EU law sought by that court bears no relation to the actual nature of the case or the subject-matter of the main action.⁶

It therefore frequently happens that the Court of Justice accepts the admissibility of a question even if it can be difficult to see the relevance of a preliminary ruling for the judgment in the main proceedings. As long as the Court cannot exclude the possibility that a preliminary ruling may be relevant, it will answer the question. When faced with such a situation the Court often comments that the presumption of relevance associated with references for preliminary rulings has not been overturned in the actual case and that this presumption can only be rebutted in exceptional cases.⁷

In Ecotrade, the Court of Justice found it doubtful whether the facts of the case were really such that the resolution of the dispute before the referring court would depend on the manner in which the Court answered the preliminary question. However, it answered the question referred.⁸ The Ecotrade case was followed by Piaggio where Advocate General Colomer—in relation both to the earlier case and the case which was the subject of his Opinion—disputed that the Italian rules in question were framed in such a way that an interpretation of EU law could be relevant for the referring court. However, the Court of Justice repeated that there was room for doubt and found the questions admissible.⁹

In ANETT, the Court of Justice agreed with the Spanish government that it was not certain that an incompatibility of the prohibition in question with EU law [would] affect the validity of the contested national decree. However, it could not ‘be completely excluded that the response of the Court may serve a purpose in relation to the outcome of the main proceedings’, and thus the Court answered the preliminary question.¹⁰

In other words, in contrast to the certiorari principle known in US law, the Court of Justice does not use this practice to establish some form of sorting of cases, whereby it decides itself whether a case has sufficient interest to be given a substantive hearing.¹¹

There are good reasons for this reticence in rejecting references for preliminary rulings. As the Court of Justice has emphasized, Article 267 is based on a distinct separation of functions between national courts and the Court of Justice.¹² In the first instance the test in Article 267 is first and foremost subjective, as the wording of the provision does not require a reference to be objectively necessary, but merely that the national court should ‘consider’ a reference to be necessary. Moreover, in contrast to the Court of Justice, the national court has direct knowledge of the facts of the case and the national law and must therefore be assumed to be in the better position to assess the relevance of a given question.

However, the increasingly intense examination of the relevance of questions and the many decisions that now exist where the Court of Justice has refused to give a preliminary ruling means that it has become quite normal for one of the parties to the main proceedings to argue that the question should be rejected as irrelevant, even in cases where there is not much doubt that the referring court will actually apply the ruling of the Court of Justice in the case in question.¹³

According to Article 101 of the Court’s Rules of Procedure, the Court may request clarification from the national court as to why it considers the question referred to be relevant for the decision in the main proceedings. The Court does not, however, consider itself obliged to obtain such clarification before deciding whether the question should be declared inadmissible on the grounds of a lack of connection with the dispute in the main proceedings.¹⁴

It is not fully clear whether the complexity and controversial character of a dispute has any bearing on whether the Court of Justice will refuse to consider an apparently irrelevant question. In an early case the Court regretted that the national court had not supplied any grounds for its orders requesting a preliminary ruling, particularly since it was impossible to determine, both from the documents submitted and from the facts of the case, what value an answer to the questions raised would have for the resolution of the case in the main proceedings. Nevertheless, the Court did not decline to reply to the questions submitted since a refusal ‘would not be in the interests of procedural economy’.¹⁵ It is unlikely that the Court would express itself in such terms today. However, it might occasionally be tempting for the Court to choose to answer an easy question rather than to tackle a difficult and confrontational assessment of whether the national court has referred an irrelevant question and thereby wasted the time and money of the parties. It has, however, also been argued that where a preliminary question appears to be interesting or concerns an important legal problem the Court of Justice seems less inclined to examine whether the question is of a hypothetical character.¹⁶ If that is true, such an approach would make it difficult for parties and their legal advisers to know when the Court of Justice will admit a case for a substantive hearing.¹⁷ Similarly, it has been argued that the Court of Justice will be less likely to dispute the relevance of a reference for a preliminary ruling from the supreme court of a Member State than a reference from a lower court.¹⁸

3. The Referring Court Must Be Able to Apply the Court of Justice’s Ruling to the Main Proceedings

As described earlier in Chapter 3, section 3.1.7, it is in the sole competence of the national court to determine its jurisdiction under national law. The Court of Justice will therefore not decline the admissibility of a preliminary question on the grounds that the decision to refer has not been taken in accordance with the rules of national law governing the organization of courts and their procedure.¹⁹

That being said, the power to seek a preliminary ruling is conferred on the national courts solely in order to enable them to resolve disputes before them by taking account of the elements of EU law clarified by the Court of Justice. It follows from both the wording and the scheme of Article 267 that a national court may only refer a question for a preliminary ruling if the Court of Justice’s answer is ‘necessary to enable it to give judgment’. That right is therefore limited to a national court which considers that a case pending before it raises questions of EU law requiring a decision on its own part. It is thus a condition that in the main proceedings the referring court is called upon to give a decision capable of taking into account the preliminary ruling. Indeed, the Court of Justice has no jurisdiction to admit a reference for a preliminary ruling when, at the time it is made, the procedure before the national court making the reference has already been terminated.

In Grogan, the High Court in Dublin referred three questions for a preliminary ruling before deciding on a request for an injunction applied for by the plaintiff. An appeal was brought against that decision to the Supreme Court which granted the injunction applied for but did not overturn the High Court’s decision to make a preliminary reference. Moreover, each of the parties was given leave to apply to the High Court in order to vary the decision of the Supreme Court in the light of the preliminary ruling to be given by the Court of Justice. The Court of Justice ruled that it had jurisdiction to answer the preliminary questions. Even though these had been referred as part of the proceedings on whether to impose the injunction, the Irish Supreme Court had expressly authorized the referring court to vary the injunction granted in the light of the preliminary ruling to be given by the Court of Justice. Hence, the Irish court making the reference was called upon to give a decision which could take into account the preliminary ruling.²⁰

A reference does not become inadmissible simply because the composition of the judges of the referring court changes between the submission of the reference and the giving of the preliminary ruling, as long as it is still the same court that is to make the decision in the main proceedings. In contrast, the Court of Justice will not have jurisdiction in cases where the main proceedings have been referred to another court so that the referring court will not be able to apply the preliminary ruling.

In Pardini, an Italian court had referred four questions for a preliminary ruling in a case on interlocutory proceedings and at the same time it had granted interim relief. Proceedings on the substance of the case had not yet been initiated and, when they were, the case would have been heard by another court. Hence, the purpose of seeking a preliminary ruling was apparently not to enable the referring court itself to arrive at a judicial decision. The starting point was therefore that the reference was inadmissible. However, both the plaintiff in the main proceedings and the Italian government had explained that the case had a special feature since, having granted the interim relief, the referring court had failed to set a date for the appearance of all parties. Under Italian law this meant that the case was still pending before the referring court, which could therefore still summon the parties with a view to confirming, amending, or revoking the interim relief, as long as the substantive proceedings had still not commenced. Accordingly, the Court of Justice had jurisdiction to answer the preliminary questions.²¹

In Monin II, the supervising judge in winding-up proceedings had referred several questions concerning EU law rules which the judge was not required to apply in the winding-up proceedings in question. The company which was subject to the proceedings argued that the judge could not make a decision to wind up the company before it had been decided whether the reasons behind the suspension of payments included conduct in breach of EU law by the French government. On this basis the supervising judge found that it could be relevant to find out whether the French government had disregarded its obligations under EU law, since the answer to this would enable him to assess the relevance of the arguments which the company had put forward to ensure its survival until the winding-up procedure had been completed. The Court of Justice noted that the supervising judge’s interest in the answers to the questions referred essentially concerned the question of the chances which the company had to obtain a favourable ruling in proceedings against the French government for compensation, as well as in a case against the French competition authority. However, neither of these cases had been brought before the supervising judge, nor could they be brought before him. On these grounds the Court of Justice refused to give a preliminary ruling.²²

If, after a reference has been made, it is evident that a preliminary ruling is no longer needed—for example because a settlement has been reached in the main proceedings—then the referring court should withdraw the reference on its own initiative, and thereby save the Court of Justice the time and the expense associated with giving preliminary rulings. In contrast, if the national court considers that it is still seized of the case in the main proceedings, the Court of Justice will only challenge this view if it does not seem substantiated.²³ In this respect, a preliminary ruling does not necessarily lose its relevance for the main proceedings just because the defendant in the proceedings admits the plaintiff’s claims and meets his demands. The Court of Justice will maintain its jurisdiction if the national court upholds its request and if the main proceedings have not yet been concluded in a manner which excludes the possibility of the national court applying the preliminary ruling in its judgment.

In Bernini, the Court of Justice had been asked a number of questions concerning the right of an Italian citizen to receive student support in the Netherlands. After making the reference, the national court informed the Court of Justice that, following the latter’s decision in Di Leo,²⁴ the Dutch government had now acknowledged the student’s claims and that, moreover, the student had received the aid that she sought. However, the national court also said that it wished to receive as complete a reply as possible on the remaining unanswered questions. The Court of Justice noted that although the finance applied for had been granted, neither the letter from the referring court nor the observations submitted at the hearing gave reason to believe that the student had withdrawn her application. Accordingly, a dispute remained pending before the referring court, in the context of which that court was called upon to give a decision capable of taking into account a preliminary ruling. Furthermore, the referring court had re-evaluated the relevance of the questions referred following the Di Leo case and had found that the answers to only two of its five questions could be deduced from that judgment. On this basis the Court of Justice found that it did have jurisdiction to rule on the three remaining questions.²⁵

In Martinez, following the national court’s preliminary reference, the relevant national legislation was changed with the result that the plaintiff in the main proceedings was granted the right to child allowance claimed by him with retroactive effect. However the referring court had acquiesced to the plaintiff’s argument that he nevertheless had a legal interest in the outcome of the case. A case thus remained pending before the referring court which could still take the Court of Justice’s rulings into account. On this basis the Court of Justice found that it had jurisdiction.²⁶

In Arduino, a judge in an Italian criminal court had fined the defendant for a traffic offence which had resulted in a collision with another car. The defendant had also been required to pay the litigation costs of the other driver. However, the Italian court refused to approve the fee charged by the other driver’s lawyer, regardless of the fact that it was based on the rates which had been approved by a ministerial decree laying down fixed rates for the professional services of lawyers. This decision concerning the lawyer’s fee was reversed on appeal and referred back for a new decision based on the decree. Thereafter the criminal court referred two questions to the Court of Justice concerning the compatibility of the decree with what is now Article 101 TFEU on agreements which distort competition. The Italian government argued that the question was inadmissible. Indeed, the defendant’s insurance company had paid the other driver’s litigation costs after the appeal court had given its decision, and in light of this payment the other driver had withdrawn from the remainder of the proceedings. Moreover, the defendant’s lawyer requested the referring court to order that the case should not proceed to judgment. In the view of the Italian government, the dispute in the main proceedings had therefore become devoid of purpose. In response to this, the Court of Justice noted that according to the documentation on the main proceedings, the case was still pending before the criminal court, and the government had not presented evidence of an agreement between the parties on the question of costs so as to bring the case to a close. The questions were therefore admissible.²⁷

As the Court’s jurisdiction is dependent on the continued existence of an action in the main proceedings the Court may also verify it of its own motion.²⁸ If circumstances arising after the submission of a request for a preliminary ruling indicate that the dispute in the main proceedings might have lapsed, the Court of Justice will often ask the referring court to confirm that the case is still pending and that a preliminary ruling is still needed. Normally that answer will be binding upon the Court of Justice. Indeed, since it is for the national courts to assess the need for a preliminary ruling, the Court of Justice cannot decline jurisdiction merely on the grounds that the national court has not convincingly shown that a preliminary ruling is still required.

In Esso Española, a Spanish court raised a number of questions in order to assess the relationship between EU law and a decree concerning the regulation of the business of a wholesaler of oil products in the Canary Islands. After the reference was made, another Spanish court annulled the decree. On this basis the plaintiff in the main proceedings requested the referring court to withdraw the request for a preliminary ruling. The referring court refused this request arguing that a ruling of the Court of Justice would be of major interest, not only to the Canary Islands, but for the whole of the Spanish national territory. Thereafter the Court of Justice wrote to the referring court and asked whether the case in question had not become devoid of purpose. However, the national court maintained its question and in this connection gave a different reason from that given to the plaintiff, namely that there had been an appeal to examine the judgment whereby the decree had been annulled. Furthermore, it stated that the annulment had not been made on the basis of the EU rules which were the subject of the request for a preliminary ruling. Lastly, it stated that if conflicting judgments were to be delivered, an action to harmonize them could be brought before the Tribunal Supremo. The Court of Justice thereafter found the questions to be admissible.²⁹

In Unitron Scandinavia A/S, the Danish Ministry for Food, Agriculture, and Fisheries argued that the Court of Justice should refuse to give a preliminary ruling on a question from the Danish Public Procurement Review Board, as a new tendering procedure had taken place in the meantime so that any infringement of the tendering rules was made good. The Court of Justice nevertheless accepted the question for a ruling, as it was not for the Court to assess the possible consequences under Danish law of the fact that a new tendering procedure in accordance with the relevant procurement directive had taken place after the main proceedings had been brought. The Court added that it was not impossible that the answers to the questions referred might cause the Procurement Review Board to annul the tendering procedure at issue in the main proceedings or to hold that it was irregular.³⁰

In Alcatel Austria, as part of a case on the prohibition of the fulfilment of a public procurement contract, the Court of Justice was requested to assess when a tendering procedure could be annulled. Before the Court of Justice, the Austrian government contended that, in so far as the contract had already been performed in its entirety, there was in reality no longer a dispute in the main proceedings. An answer to the preliminary questions would therefore be irrelevant since the applicants in the main proceedings could only obtain damages at this stage. The Court of Justice nevertheless found the questions admissible, stating that the referring court had informed it that, under domestic law, the question had arisen whether the national court was entitled or even required under EU law to set aside a previous decision terminating the first award procedure on the grounds that the contract had not been awarded to the tenderer which had made the best offer. In the light of that procedural issue, the questions referred to the Court for a preliminary ruling seemed to remain pertinent even if the award procedure in question had in the meantime been settled.³¹

The situation is, however, different when the referring court itself states that the proceedings that gave rise to the preliminary reference has been terminated but that it still wishes to receive an answer to the question raised, since one of the parties to the main proceedings intend to bring another claim based on the same EU rules and that an answer to the preliminary question is expected to be relevant for these subsequent proceedings.

In Imran, the Dutch authorities had refused to grant a third-country national a provisional residence permit. This refusal was challenged before a Dutch court that decided to make a preliminary reference to the Court of Justice concerning the interpretation of Council Directive 2003/86/EC on the right to family reunification. After the reference was made, the Dutch authorities declared the application for residence permit well-founded. The Dutch government argued that this meant that the main proceedings no longer served a purpose. Whilst in principle the referring court agreed, it maintained its request for a preliminary ruling since Ms Imran intended to bring an action for damages before it. The Court of Justice held that the initiation of such proceedings were merely possible and hypothetical. It therefore found that it was not necessary to give a ruling on the request for a preliminary ruling.³²

In Di Donna, an Italian court made a preliminary reference of several questions concerning the compatibility with Union law of certain Italian provisions that required a plaintiff to follow a compulsory mediation procedure before he could institute legal proceedings before the Italian courts. After the reference had been made, the Corte costituzionale declared these provisions unconstitutional with the effect that the prior initiation of mediation in Italy was no longer a precondition for the institution of legal proceedings and the parties were henceforth no longer bound to resort to mediation. On that basis, the Court of Justice requested the referring court to inform it of whether it maintained its request for a preliminary ruling. The referring Italian court replied that it would maintain its request for a preliminary ruling but it did not take a position on the bearing of that judgment on the decision in the main proceedings or on the relevance of the questions referred to the Court of Justice for a preliminary ruling. The Court of Justice ruled that following the judgment of the Corte costituzionale, the national legislation applicable to the dispute in the main proceedings was no longer that under consideration in the context of the request for a preliminary ruling, and that the questions referred thus had become devoid of purpose as a result of the changes which have occurred concerning the applicability of the national legislative provisions. Hence, taking into account the development of the dispute before the referring court from the point of view of the applicable law, the Court of Justice was no longer in a position to give a ruling on the questions which had been referred to it.³³

Moreover, sometimes the national court’s desire to maintain its request for a preliminary ruling is based on a misunderstanding of the procedure laid down in Article 267. It has, for example, happened that the referring court wrongly believed that EU law did not allow it to withdraw its request for a preliminary ruling. There have also been situations where the referring court wrongly assumed that even where it had taken a final decision in the main proceedings, the Court of Justice continued to have jurisdiction to make a ruling if the question was of general interest. Where there is such a misunderstanding, the Court of Justice declines to accept jurisdiction until the national court has confirmed that the main proceedings remain undecided under national law.

In Zabala Erasun, after a reference to the Court of Justice for a preliminary ruling, the Spanish government acceded to the claims of the plaintiff and paid the unemployment benefits claimed by the latter. Furthermore, the government declared that the payment, with retrospective effect, should be regarded as being covered by the scope of the relevant rule in EU law, as the plaintiff had argued in the main proceedings. Finally, the government submitted that the preliminary reference should be withdrawn as the dispute no longer existed. As a result of this the Court of Justice asked the referring court whether it maintained its request for a preliminary ruling. The national court replied in the affirmative. It explained that it could not accept the government’s acquiescence, hold that the case had been terminated, and withdraw the questions referred for a preliminary ruling. This was so, first, because the case was no longer pending before the court itself but had been referred to the Court of Justice and, second, because the questions were of such importance that they went beyond the dispute between the parties in so far as the interpretation which the Court would give would have general scope. The Court of Justice held that these two points of reasoning did not fall under national law, but related to the interpretation of Article 267. On the first point, it followed from Article 267 that where a case is referred for a preliminary ruling, only the request for interpretation or a decision on validity is addressed to the Court; the case itself is not transferred. Consequently, the national court remains seised of the case, which is still pending before it. Only the procedure before that court is suspended until the Court of Justice has delivered its ruling on the reference. As for the second point, the Court of Justice noted that the purpose of the preliminary rulings procedure was not to enable it to give answers to general or hypothetical questions, but rather to help in the resolution of concrete legal disputes. Accordingly, EU law did not preclude a national court which had made a preliminary reference from finding that in national law the claims of the appellants had been acceded to and, where appropriate, that the main proceedings were thereby terminated. On this basis the Court of Justice declared that it did not have jurisdiction as long as the Spanish court had not confirmed that, under Spanish law, the proceedings continued to be pending.³⁴

Where it is obvious that the national court does not in fact need an answer to the question referred, but is merely prevented by national law from withdrawing the question, for instance because the plaintiff has not taken the necessary steps to end the case, the Court of Justice will set aside the assessment of the referring court.

In Djabali, after the national court had made a reference for a preliminary ruling, the French government paid the plaintiff the amount that she had claimed and requested her to terminate the case. However, the plaintiff did not do so and the national court informed the Court of Justice that under the national rules of procedure it had no power to withdraw a question duly referred to the Court for a preliminary ruling. The Court of Justice held that since the claims of the plaintiff had been satisfied in full, the case pending before the national court no longer had any purpose. In those circumstances, for the Court to reply to the question referred would be of no avail for the referring court. Hence, it was unnecessary to give a ruling.³⁵

In a couple of decisions the Court of Justice has been prepared to conduct its own assessment of whether an answer to the questions referred may really be of use for the national court.

In García Blanco, a Spanish court had referred several questions in connection with a dispute between García Blanco and the Spanish social authorities. Garciá Blanco died two months later. Referring to Zabala and Djabali, the Court of Justice stated that a national court could only make a reference for a preliminary ruling if it were to give a judgment in which it could take the preliminary ruling into account. The Court also noted that, after the case had been referred to it, the Spanish authorities had granted García Blanco the pension she had claimed. Furthermore, her heirs had been given the choice between two different pension schemes which could not be granted simultaneously, without having raised objections to this. On this basis the Court of Justice asked the national court to assess whether it maintained its request for a preliminary ruling. The national court answered in the affirmative, as it believed that a ruling could be relevant for other cases pending before the same court. This led the Court of Justice to inform the national court that a reference for a preliminary ruling could be made to the Court only in proceedings pending before that same national court. Moreover, the Court of Justice observed that it was open to the referring court to refer the same questions for a preliminary ruling in other pending proceedings. In answer to this, the national court stated that the main proceedings were in fact not concluded, in that, in particular, the deceased’s successor had not discontinued the action and the defendants had not formally revoked the original decision refusing a pension against which the main action had been brought. Notwithstanding this, the Court of Justice refused to answer the question as it could not see how a preliminary ruling could be of assistance to the Spanish court.³⁶

The trend is, however, not unequivocal and most often the Court continues to apply its traditional approach.

In Commune de Mesquer, an oil tanker had caused pollution of the Atlantic coast of France. The municipality of Mesquer brought proceedings before the French courts against the relevant company seeking a ruling that the company should be liable for the consequences of the damage caused by the waste which had spread across the territory of the municipality. The French Cour de cassation made a reference to the Court of Justice. Before the Court, the potentially liable company submitted that the reference for a preliminary ruling should be declared inadmissible in so far as the municipality had already received compensation from the International Oil Pollution Compensation Fund and consequently had no legal interest in bringing proceedings. In these circumstances the request for a preliminary ruling was, the company submitted, hypothetical. The Court of Justice noted that it did indeed transpire from the documents in the case that the municipality had received payments from the fund and that those payments were the subject of settlements by which the municipality expressly agreed not to bring any actions or proceedings, on pain of having to repay the sums received. However, it also transpired from the documents that, at the time of making the reference, the referring court had that information before it, but nonetheless did not consider that the dispute in the main proceedings had ceased or that the municipality had lost its legal interest in bringing proceedings. In these circumstances the Court chose to answer the questions referred.³⁷

4. Questions Not Related to the Facts and Circumstances of the Main Proceedings

4.1. The Court’s Answer Will Only Be Relevant for Future Cases

In its earlier decisions the Court of Justice did not declare a question inadmissible, regardless of the fact that it was not relevant to the solution of the dispute in connection with which the question was raised, as long as the referring court indicated that the answer would be relevant to other pending or subsequent cases. For example, this could be the situation if the main proceedings were a test case for a series of later cases and a ruling on a question which was not relevant for the actual main proceedings would mean that it would not be necessary to make further references in these later cases.³⁸ Such questions will, however, no longer be found admissible. According to the current practice, it is a condition for the admissibility of a reference for a preliminary ruling that it relates to the actual circumstances of the case and to an existing dispute. Thus, it is no longer sufficient that the answer to the question might be relevant to other subsequent cases.³⁹

In Saddik, the referring court had asked the Court of Justice to give a ruling on whether EU law prevented legislation which imposed penalties for contraventions of the Italian rules on processed tobacco sales. It was clear from the order for reference that such criminal proceedings had not been initiated, but that this could later be the case. The Court of Justice refused to give a ruling on the question.⁴⁰

In Nour, a German social security commission had referred a number of questions concerning the general principles of EU law in connection with a case about a doctor’s right to terminate various agreements on fees. It was not clear from the reference how the principles in question could be applicable to the actual case, which did not involve any cross-border elements. This situation was not altered by the fact that the referring court had stated that doctors who were citizens of other Member States could be involved in similar disputes in the future. The Court ruled that a hypothetical possibility of exercising Treaty-based rights did not of itself create such a link with EU law as to justify its application. Thus, it declined jurisdiction to answer the questions.⁴¹

This practice is praiseworthy even if it will sometimes entail that subsequent cases take longer to decide. This is particularly so because the Court of Justice will often not receive submissions from the parties in the main proceedings (who will not necessarily have an interest in the answer to the questions raised by the referring court). Moreover, the order for reference will often not contain sufficient information for the Court to have enough knowledge about the factual situation to which the Court’s answer might be applied in the future. Finally, the situation can be complicated if the facts in the subsequent cases turn out not to correspond entirely with those which were assumed in the preliminary question.

The requirement that a question should concern a pending dispute does not prevent a national court from referring a question for a preliminary ruling in connection with a judgment of a preliminary opinion (‘avis préalable’/‘Vorbescheid’). This is so even if the preliminary opinion will often relate to actions which have not yet been carried out and that, for example, certain tax dispositions may not have been made at the time when the reference for a preliminary ruling is made to the Court of Justice.⁴² Indeed, the subsequent carrying out of such actions may well depend upon the outcome of the preliminary opinion procedure.

In the same manner, the Court of Justice will accept references for preliminary rulings that are made in connection with declaratory judgments. A suit for a declaratory judgment can be an important means for ensuring the effective protection of rights. A national court that has to deal with such a suit must therefore be able to make a reference for a preliminary ruling on the relevant EU law provisions. Only in very special cases should the Court of Justice set indirect limits on national procedural autonomy, including in relation to proceedings that are intended to clarify the legality of some given future conduct. In general it must be assumed that the restrictions in national law on the right to bring proceedings relating to uncertain future events take sufficient account of the fact that the procedure for making references for preliminary rulings is intended to contribute to the administration of justice and that it should not have the character of providing answers to abstract questions. The linking of a question to the substance of a case must be determined on the basis of the claims of the plaintiff. Where these claims are admitted to substantive proceedings under national rules, it is difficult for the Court of Justice to reject a question as being hypothetical in relation to the issue pending before the national court.

In Bosman, the relevant heads of claim had been held admissible in the main proceedings on the basis of a procedural provision in Belgian law permitting an action to be brought, albeit for declaratory purposes only, to prevent the infringement of a right which is seriously threatened. One of the questions concerned the legality of certain ‘nationality clauses’ according to which football associations mutually voluntarily restricted their rights to employ players of foreign nationality. At the time when the case was brought and considered by the national court, the plaintiff, Bosman, a Belgian footballer, was employed by a Belgian club, but he had previously played for and negotiated with foreign clubs. The national court had accepted the case concerning the nationality clause on the grounds that it was possible that, after the expiry of his contract with the Belgian club, Bosman would seek employment with a club outside Belgium. Advocate General Lenz acknowledged that the nationality clause had not hitherto prevented Bosman from playing for a foreign club and that the possibility that such a clause would in future cause problems for Bosman was highly doubtful and of a hypothetical nature. Nevertheless he suggested that the question be accepted for a hearing since, in connection with the examination of whether the case could be brought under national law, the referring court had judged that the rights which Bosman claimed to have under EU law were in fact threatened. The Court of Justice reached the same conclusion, noting that it was not for it to challenge this finding of the referring court. Moreover, questions submitted by a national court called upon to decide on declaratory actions seeking to prevent the infringement of a right which was seriously threatened were to be regarded as meeting an objective need for the purpose of settling the dispute brought before that court, even though they were necessarily based on hypotheses which were, by their nature, uncertain, if it holds them to be admissible under its interpretation of its national law. The questions referred were therefore not regarded as being hypothetical in relation to the dispute on which the national court had to pass judgment.⁴³

In Omega Spielhallen, the German company Omega had begun the operation of a ‘laserdrome’ in which customers shot at targets with laser pistols. After finding out that one of the games involved hitting targets that were placed on other players, the German police prohibited Omega from continuing to offer this game, which the police believed was contrary to public order and morals. Omega then brought a case before the German courts in which, among other things, it claimed that the prohibition was contrary to the right to offer cross-border services, as the game used equipment and technology provided by an English company. When the case was referred to the Court of Justice for a preliminary ruling, the German police queried the admissibility of the question referred as the prohibition had not affected any cross-border transaction. At the date on which the order was adopted, the equipment which the English company had offered to Omega had not yet been delivered. In fact, Omega had not even concluded a binding contract with the supplier. Notwithstanding this, the Court of Justice found the questions admissible, referring to the fact that the contested order was of a forward-looking nature and capable of restricting the future development of contractual relations between Omega and the English supplier.⁴⁴

The fact that a final administrative decision has not yet been taken does not prevent a reference being made for a preliminary ruling on a declaratory judgment against a Member State’s administrative authorities on the same question.

Some Danish freelance interpreters working at the EU had brought a case against the Danish Ministry of Taxation with a claim that the Ministry should recognize that the interpreters’ fees were exempt from national taxation. The Danish Supreme Court found that the fact that the Danish tax authorities had not made a final tax assessment of the interpreters’ income did not prevent the case from being the subject of court proceedings, including the making of a reference to the Court of Justice for a preliminary ruling.⁴⁵

4.2. Questions Concerning Factual Circumstances which Differ from those in the Main Proceedings

Increasingly, the Court of Justice examines whether a question referred for a preliminary ruling concerns the factual situation which, according to the referring court’s own information, exists in the main proceedings. Where this is not the case—and a ruling on the question will not even be indirectly relevant to the decision in the main proceedings—the Court of Justice holds the preliminary reference inadmissible on the grounds that an answer to the question referred will not be material for the actual case with which the national court is presented.

For example, a question concerning the proportionality of criminal sanctions will not be found admissible if it is made in connection with a civil action between two private parties.⁴⁶ Similarly, in a case concerning the validity of a national law which prohibits advertisements, a ruling will only be given in relation to the form of advertisement or type of product which is in fact involved in the case. Thus, if the main proceedings only concern the lawfulness of advertisements for an undertaking which is only active in the distribution sector, the Court of Justice will refuse to give a ruling that relates to other business sectors.⁴⁷

Safety Hi-Tech concerned a reference for a preliminary ruling on the validity of a regulation as a whole. However, the main proceedings only concerned the regulation’s prohibition of the use of certain materials for fire-fighting. Since the dispute in the main proceedings neither covered the regulation’s provisions on other materials nor the regulation’s provisions on other uses of the materials in question, the Court of Justice did not consider the validity of these provisions in its ruling, but only ruled in relation to the facts in the main proceedings.⁴⁸

That a question relates to facts that differ from those in the main proceedings is the most frequently used ground for holding requests for preliminary rulings inadmissible.⁴⁹ The practice of the Court of Justice thus illustrates that there are limits to how far the preliminary ruling procedure can be used for a more general challenge to national law.

In a number of cases concerning the validity of progressive taxation of motor vehicles based on horsepower or cylinder capacity, the Court of Justice has refused to rule on possible questions of tax discrimination which did not concern the actual imposition of tax that was disputed in the main proceedings. In Tarantik, two of the three questions concerned French tax rules concerning individually approved vehicles. The Court of Justice noted that the plaintiff in the main proceedings had given information that his vehicle had been type-approved. On this basis the Court of Justice refused to answer these two questions.⁵⁰ In Lourenco Dias, a Portuguese court had referred a number of questions which in reality asked the Court of Justice to pass judgment in abstract terms on the entire Portuguese system of taxation of motor vehicles. Thus, one of the questions concerned the tax on second-hand cars, even though the vehicle which was the subject of the disputed tax was new. Furthermore, other questions concerned other cylinder capacities than those that characterized the motor of the vehicle in question.⁵¹

SONAE concerned various questions on indirect taxation of the raising of capital. In one of its questions the referring court wanted the view of the Court of Justice on whether EU law required an amendment to a Portuguese law to be given retroactive effect. According to the preliminary reference, this amendment meant that there was a maximum taxation of 15 million Portuguese Escudos. The Court of Justice noted that the plaintiff in the main proceedings had only paid a little over 7.6 million Portuguese Escudos. The answer to the question was therefore not relevant to the resolution of the case pending before the referring court, regardless of whether EU law required the amendment to be given retroactive effect. Consequently the Court of Justice refrained from answering the question.⁵²

In Alabaster, a question was referred to the Court of Justice about the legal effects of sex discrimination. One part of the question concerned whether, in calculating the pay that was due to the person discriminated against, account should be taken of any decrease in the person’s pay during a given period. The Court of Justice stated that it appeared from the order for reference that the dispute in the main proceedings related exclusively to a refusal to take account of a pay rise, there being no question of any pay decrease. A ruling on the part of the question that concerned pay reduction was therefore not relevant to the dispute in the main proceedings, and this part of the question was thus declared inadmissible.⁵³

The main proceedings in My concerned a dispute about whether Mr My fulfilled the conditions for a Belgian early retirement pension requiring that he had completed 35 years of employment. In this connection, the principal question in the main proceedings was whether Mr My’s 27 years of service as an EU official should be taken into account in respect of his entitlement to an early retirement pension under Belgian law. In a reference for a preliminary ruling the Court of Justice was asked, among other things, to rule on various questions about the transfer of pension rights between the pension scheme for EU officials and the pension scheme for Belgian public employees. The Court of Justice refused to give a ruling on these questions because Mr My had never requested a transfer to the Belgian pension scheme of pension rights that he had acquired under the EU scheme, but had merely requested an early retirement pension, and in this connection had challenged the Belgian authorities’ refusal to take into account the years he had worked as an EU official.⁵⁴

The situation is different in cases where, in a narrow sense, a question does not concern the dispute which is before the national court, but where the answer to that question can nevertheless be relevant to the formulation and extent of the judgment which is to be given by the national court. The Court of Justice has accepted such questions.

In Inspire Art, the parties to the main proceedings disagreed about whether the Inspire Art company should be registered in the Netherlands as a Dutch company or as a foreign company. On this basis the national court referred a question to the Court of Justice, while at the same time requesting an assessment of a number of provisions in Dutch law which did not directly concern the question of registration, but rather the legal effects associated with registration. The Commission, the Netherlands government, and the Netherlands Chamber of Commerce argued that the preliminary ruling should be limited to whether EU law precluded the Netherlands provisions which regulated the right to be registered as a Netherlands company. In response to this, the Court of Justice stated that the national court had found that the possible problems in relation to EU law also related to various provisions concerning the obligations of registered companies, and that these obligations were imposed on registered companies as a legal consequence of registration. In order to give the referring court an answer which it could use in framing its judgment in the main proceedings it was therefore necessary to examine the compatibility with EU law of these Netherlands provisions.⁵⁵

4.3. The Question Is Based on Unverified Alternative Views of the Facts