References for Preliminary Rulings



1. Introduction

1.1. Preliminary Rulings in the European Union’s Judicial System

A reference for a preliminary ruling is a request from a national court of a Member State to the Court of Justice of the European Union to give an authoritative interpretation on an EU act or a decision on the validity of such an act. In this situation the Court of Justice does not function as a court of appeal which rules on the outcome of the main proceedings before the referring court: it makes judgment neither on the facts in the main proceedings nor on the interpretation and application of national law. Moreover, in principle, it does not pronounce itself on the concrete application of EU law in the main proceedings before the referring court. Finally, while a preliminary ruling is normally given in the form of a judgment, the ruling is addressed only to the referring court, but not to the parties to the main proceedings. Only the referring court’s subsequent decision can be enforced against those parties. As a matter of principle, the preliminary reference procedure is therefore an expression of an interplay and allocation of tasks between national courts and the Court of Justice.1 It is this interplay which is the subject of this book.

Already the Treaty establishing the European Coal and Steel Community (ECSC)—the first stone laid in founding the European Union—from 1951 made provision for the preliminary reference procedure.2 However, it has been Article 267 TFEU (originally Article 177 and subsequently Article 234 in the Treaty of Rome of 1957) that has ensured the prominent position of the preliminary reference procedure on the legal map of Europe. By this provision the six original Member States of the European Economic Community gave their national courts the possibility, and in some cases the obligation, to make preliminary references. This Article states as follows:

The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:

(a) the interpretation of the Treaties;

(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;

Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.

Where 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.

If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay.

The preliminary ruling procedure has several important functions:

Preliminary rulings have played a crucial role in the development of EU law, and some of the most fundamental principles of EU law have been laid down in connection with preliminary rulings. This includes, for example, such central principles as direct effect and supremacy of EU law. One consequence of the preliminary ruling procedure has been to bind the national courts more closely to the Court of Justice. This has meant that these courts, functionally speaking, also act as EU courts. Or, in the words of the Court of Justice ‘the tasks attributed to the national courts and to the Court of Justice respectively are indispensable to the preservation of the very nature of the law established by the Treaties’.4

As Article 267 has direct effect, many Member States have made no supplementary national legislation regulating when and how a preliminary reference should be made or how a preliminary ruling should be applied by the national courts. Instead, such questions are often regulated by a combination of case law of the Court of Justice and general procedural codes of the different Member States.

1.2. The structure of this book

This book examines the different aspects of the preliminary reference procedure. It is divided into 13 chapters which broadly mirror the order in which the various issues connected with a reference under Article 267 arise for a national court.

In this introductory chapter we first give an account of the development of the preliminary procedure (section 2). Thereafter we give a brief outline of the different types of preliminary references in the EU system (section 3). We then give a short account of the broadly similar reference procedure laid down in the European Economic Area (EEA) Agreement (section 4) followed by an account of other ways of obtaining guidance on interpretation of EU law, namely questions to the Commission and the European Ombudsman (section 5). The chapter ends with a discussion of what future changes one might envisage for the preliminary reference procedure in the coming years (section 6).

Next, Chapter 2 analyses the use of the procedure and discusses the variations in frequency of references between the different Member States. Chapter 3 discusses which bodies may make preliminary references while Chapter 4 examines which questions can be referred for a preliminary ruling. Chapter 5 discusses the requirement that an answer to the preliminary question is relevant for the resolution of the main proceedings. Chapter 6 defines when a national court must make a preliminary reference. Chapter 7 discusses when a national court that is not obliged to make a preliminary reference should make such a reference. The form and content of a preliminary reference is the subject of Chapter 8. Chapter 9 provides an account of the steps that a national court may take after having made its reference while Chapter 10 contains an analysis of the procedure before the Court of Justice and discusses how written and oral observations may be presented. Chapter 11 examines the preliminary ruling as such, including the extent to which the Court of Justice reformulates the preliminary question. Chapter 12 considers the binding effect of a preliminary ruling. Finally, Chapter 13 describes the rules on costs and legal aid.5

2. History and Development of the Preliminary Reference Procedure

The preliminary ruling procedure laid down in what is now Article 267 TFEU was inspired by various reference systems in the founding Member States. Of particular significance were the procedures in Italian and German law where certain matters are referred to the Constitutional Court for a preliminary ruling. The French system, in which general courts can refer different matters to administrative courts for a preliminary ruling and vice versa, also served as a model. In comparison, at the inception of the European Communities there was no other system of cooperation between an international court and national courts which could serve as inspiration. The preliminary ruling procedure was thus one of the very first forms of advanced cooperation between national courts and an international court. The procedure has since been a model for the establishment of various national procedures,6 as well as for the advisory opinion system that has been introduced through Protocol No 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms.7

The Court of Justice received its first preliminary reference in 1961.8 In the early years the number of preliminary references was very limited. In the ten years from 1960 to 1969 there were only 75 references, in other words an average of fewer than eight per year. Against this background it is hardly surprising that the Court of Justice developed a practice that was characterized by a desire not to discourage references. Among other things, the Court of Justice laid down a broad definition of what was to be considered ‘a court or tribunal of a Member State’, and it expressly refrained from assessing the relevance of a question referred. Likewise, it applied some rather relaxed requirements regarding the referring court’s description of the facts and national law as well as regarding the precision of the preliminary question as such. It was also characteristic that the Court described the relationship between itself and the national courts as that of a non-hierarchical cooperative procedure between equal partners, where each was responsible for clearly defined tasks.

Following its somewhat hesitant beginning the preliminary reference procedure has grown rapidly and today is in danger of becoming a victim of its own success.

In the period between 1961 and 1998, the number of annual references grew by 16 per cent on average, with an overall increase of nearly 100 per cent in the period from 1990 to 1998.9 Then came a period where the volume of cases was more or less constant. However, in the last couple of years a new upward trend is recognizable, and in 2012 the Court of Justice received 404 references.10 At the end of 2012 886 cases were pending before the Court of Justice, of which 537 were preliminary references.11

An important consequence of the large number of references is that the average time taken to deal with each reference is substantial. Another consequence is that it has become increasingly difficult for the Court of Justice to ensure full coherence within its case law, as it has grown to such magnitude that it has become virtually impossible even for the members of the Court to know all the cases. While in 1975 the time spent dealing with a preliminary reference case was six months, by 2012 the average time was 15.7 months. Indeed, the figure of 15.7 months was a drop from a peak of 25.5 months in 2003. These figures cover wide variations between individual cases, and on several occasions a preliminary ruling has not been rendered until over four years after the national court made the reference.12

Presumably, the considerable time it takes to obtain a preliminary ruling deters a number of national courts from using this procedure even though otherwise the nature of the main proceedings justifies doing so.13 In a resolution of 9 July 2008 on the role of the national judge in the European judicial system, the European Parliament argued that the duration of the preliminary ruling procedure was excessively long and considerably reduced the attractiveness of the procedure for national judges.14

Arguably, the increase in the volume of cases was a contributory factor to the Court of Justice changing its practice in the mid 1990s on a number of important points regarding preliminary references. During this period the Court tightened the conditions under which a national court may make a reference and it established more stringent requirements regarding the formulation of a preliminary reference.15 The 1990s also witnessed a change in the Court of Justice’s practice whereby still more emphasis was put on the procedural rights of those entitled to present observations in the preliminary procedure before the Court.16

While the case law has become more detailed, at the same time the exposition of the principles underpinning the preliminary ruling procedure and the allocation of jurisdiction between the Court of Justice and the national courts have become more blurred. In legal literature it has even been argued that the spirit behind the preliminary ruling procedure has come under attack.17 Moreover, EU law is primarily based on decentralized enforcement, and the most powerful—and for the Court of Justice the most dangerous—means whereby the national courts can show their dissatisfaction is by refusing to recognize the rulings of the Court of Justice. From a strategic point of view, therefore, good relations with the national courts continue to be of considerable importance to the Court of Justice.18

Whereas such concerns may seem somewhat exaggerated, the continued increase in cases before the Court of Justice entails a risk that, in the long run, the system will end up in a gridlock which may put the preliminary reference system into jeopardy. For that reason, several measures have been taken in order to make the Court better suited to dealing with the pressure of cases—measures that have already shown their positive effect. Indeed, the average 15.7 months that it took in 2012 to process a preliminary reference is the shortest since the end of the 1980s.

Most of the measures taken concern the internal organization of the Court’s working methods and therefore fall outside the ambit of this book.19 However, the Court has also engaged upon a number of measures that directly affect the preliminary procedure as such, and the ability to decide cases via a simplified procedure in the form of a reasoned order has enabled it to decide simpler cases more speedily.20 Similarly, the Nice Treaty introduced the possibility of delivering judgments without the Advocate General giving an Opinion; something which is now often used and which has contributed significantly to reducing the length of the proceedings.21 Moreover, the special urgent procedure for handling preliminary references in the areas entitled Area of Freedom, Security and Justice (AFSJ) under Title V of Part Three TFEU has made it possible to deal more swiftly with these types of cases.22 Finally, a key objective of the Court’s 2012 Rules of Procedure23 is to continue the efforts to maintain the Court’s capacity to dispose within a reasonable period of time of the cases brought before it. Thus the 2012 rules of procedure have introduced a number of measures to ensure that cases are dealt with swiftly and efficiently. Those measures include, in particular, vesting in the Court the possibility of adopting a decision with a view to limiting the length of written pleadings or observations lodged before it, as well as a relaxation of the preconditions for the Court’s adoption of reasoned orders, particularly where the answer to a question referred by a national court or tribunal for a preliminary ruling admits of no reasonable doubt. Also the report for the hearing, which prior to the adoption of the 2012 rules of procedure was a source of costs and delay in the handling of cases, was abandoned. Moreover, as a rule the Court may dispense with an oral hearing if on reading the written pleadings or observations lodged by the parties it considers that it has sufficient information.

3. Possibilities of Making References to the Court of Justice Other than on the Basis of the Treaties

As observed earlier in section 1 herein, Member State courts were first granted the possibility of making preliminary references by Article 41 of the Treaty establishing the European Coal and Steel Community (ECSC).24 In practice Article 267 TFEU, however, accounts for the vast majority of preliminary references, and today this provision has become almost synonymous with the preliminary reference procedure.

However, there are other bases for making preliminary references to the Court of Justice than the now defunct Article 41 of the ECSC Treaty and Article 267 TFEU, namely on the basis of a number of ‘EU conventions’ adopted outside the Treaty framework. Many of these conventions include provisions on preliminary rulings. In most respects these other bases correspond to Article 267, but in certain regards there are differences, sometimes differences of considerable importance. Where such differences exist, they are identified and examined in the relevant chapters of this book.25

Of particular significance when it comes to preliminary references based on conventions has been the Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters. As of 2002 the Brussels Convention has been replaced by the so-called Brussels I Regulation.26 This regulation is based on Title IV of the former EC Treaty which meant that preliminary references regarding this regulation were governed by Article 68 of that Treaty. Due to the Danish opt-out on justice and home affairs, the Brussels I Regulation does not apply in Denmark.27 Moreover, it has been pointed out that the Brussels Convention also continues to apply where the Brussels I Regulation does not apply ratione loci, namely to overseas territories such as Mayotte (France) and Aruba (the Netherlands).28

Like the Brussels Convention, the Convention on the law applicable to contractual obligations,29 the so-called Rome Convention, has been replaced by a regulation, the Rome I Regulation.30 As with the Brussels Convention, the Danish opt-out on justice and home affairs means that the Rome I Regulation will not apply to Denmark. The Rome Convention, therefore, continues to apply vis-à-vis Denmark.

In addition to the above, there are a number of conventions adopted on the basis of Title VI of the former EU Treaty prior to the introduction of Article 35 of that Treaty. These are: the Convention on the establishment of a European Police Office;31 the Convention on the protection of the European Communities’ financial interests and the Protocol to that Convention drawn up on 27 September 1996;32 the Convention on the use of information technology for customs purposes;33 the Convention drawn up on the basis of Article K.3(2)(c) of the Treaty on European Union on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union;34 the Convention on the service in the Member States of the European Union of judicial and extrajudicial documents in civil or commercial matters;35 the Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on mutual assistance and cooperation between customs administrations;36 the Convention drawn up on the basis of Article K.3 of the Treaty on European Union on driving disqualifications;37 and the Convention on jurisdiction and the recognition and enforcement of judgments in matrimonial matters.38

4. References to the EFTA Court

4.1. The Procedure for Making a Preliminary Reference to the EFTA Court

The preliminary reference procedure is not only of relevance to the courts in the Member States of the EU. It is also important for the national courts in Iceland, Lichtenstein, and Norway, as a result of the participation of these countries in the EEA.

According to Article 107 and Protocol 24 to the EEA Agreement, an EFTA State that is party to the EEA Agreement can decide that its courts may make references for preliminary rulings to the Court of Justice. So far no such decisions have been taken. The courts in these three EFTA States cannot therefore refer preliminary questions to the Court of Justice. Instead, they must make such references to the EFTA Court.39

The procedure for making a preliminary reference to the EFTA Court is laid down in Article 34 of the ‘Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice’ (SCA). According to that provision, the EFTA Court shall have jurisdiction to give advisory opinions on the interpretation of the EEA Agreement. Where such a question is raised before any court or tribunal in an EFTA State, that court or tribunal may, if it considers it necessary to enable it to give judgment, request the EFTA Court to give such an opinion.

Although Article 34 SCA resembles Article 267 TFEU, there are a number of differences between these provisions.

The first difference with Article 267 TFEU is that Article 34 SCA does not provide for any mandatory references for national courts or tribunals whose decisions are final. Thus, even if its decision will be final, a national court or tribunal is not under an obligation to refer the question to the EFTA Court. According to the EFTA Court, this reflects not only the fact that the depth of integration under the EEA Agreement is less far-reaching than under the EU treaties; it also means that the relationship between the Court and the national courts of last instance is, in this respect, more partner-like.40

Moreover, Article 34 SCA provides that an EFTA State may limit references to only those courts whose decisions are final. Of all the original EEA EFTA States only Austria made use of that possibility, and after Austria joined the EU it is now not being used.

The second difference is that the rulings of the EFTA Court under Article 34 SCA are merely advisory to the national court. Due to constitutional reasons, the EFTA States did not want to give the EFTA Court competence to give binding interpretations on the EEA Agreement. Whilst this is important from a formal point of view, the practical implications of this difference vis-à-vis the EU legal system should not be overestimated. A national EFTA-State court that has requested an advisory opinion would surely be reluctant to disregard that opinion. It has, moreover, been argued that if the referring EFTA-State court should disregard an advisory opinion of the EFTA Court that finds part of an EFTA State’s legislation incompatible with EEA law this would amount to a violation of the EEA Agreement by the EFTA State concerned.41 This view might, at first sight, seem surprising, as the national court has no obligation to follow the advisory opinion of the EFTA Court. The reasoning, however, is that the infringement would not stem from the fact that the national court did not follow the advisory opinion, but rather from the fact that the national court, by arriving at a result which differed from that of the EFTA Court, had applied the EEA Agreement incorrectly. Therefore, the EFTA Surveillance Authority should be able to bring an infringement case against the EFTA State concerned for having failed to fulfil its obligation to apply EEA law correctly. For obvious reasons one would expect that where such a case was brought before the EFTA Court, the EFTA Court would stick to the view on the law which it has previously expressed in its preliminary advisory opinion, and thus it would very likely find in favour of the EFTA Surveillance Authority.

The third difference is that in contrast to the Court of Justice of the European Union’s jurisdiction under Article 267 TFEU, the EFTA Court’s jurisdiction under Article 34 SCA does not extend to questions of validity of what, in EU law, would be labelled secondary measures or secondary acts. This is due to the fact that EEA law is generated by way of amending the EEA Agreement so that, formally speaking, EEA legislation does not operate with a hierarchy of norms similar to that known in EU law. Since the EFTA Court is not competent to review the legality of EEA acts corresponding to directives and regulations, it cannot annul such acts, where that legislation does not conform to the main part of the EEA Agreement (corresponding to the EU Treaties) or to general principles of a constitutional nature. In this regard the EFTA Court’s jurisdiction differs from that of the Court of Justice.

As the EFTA Court’s advisory opinion in CIBA demonstrates, there is, however, a fine line between decisions on validity and decisions on interpretation. In that case, the referring court had asked whether the EEA Joint Committee was empowered to decide that an EFTA State could adopt derogations from the existing Union aquis

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