The Form and Content of a Reference

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THE FORM AND CONTENT OF A REFERENCE

1. Introduction

An order for reference to the Court of Justice must obviously be formulated in such a way as to be in accordance with Article 267 TFEU. The questions asked must, in other words, fall within the jurisdiction of the Court of Justice. Therefore, they may not (directly) concern the actual application of EU law to the case in question, nor may they invite the Court of Justice to perform an evaluation of the facts in the main proceedings, nor may they relate to the interpretation or validity of national law.¹

Apart from this, the procedure for preliminary references is relatively unregulated. In order for the preliminary reference process to work effectively, the Court of Justice has, however, gradually laid down a number of requirements for how a reference should be formulated. This chapter identifies these requirements and makes recommendations as to how a reference should be framed. However, a few remarks may first be beneficial regarding the respective roles of the referring court and the parties to the main proceedings.

Under EU law a national court that contemplates making a preliminary reference is not required to consult the parties to the proceedings on the questions that it considers referring. On the other hand, EU law does not deny the parties any influence over the design of a reference; on the contrary, while emphasizing the discretion of the national court, the Court of Justice has itself emphasized the usefulness of hearing the parties.²

National practice varies with regard to the role played by the parties in preparing a preliminary question. Whilst for instance the Austrian Administrative Court, the Belgian Council of State, the German Federal Administrative Courts, the French Council of State, and the Supreme Court of Spain all draft a preliminary reference without much involvement of the parties, the parties play an important role in this respect in for example Ireland, the United Kingdom, and Denmark. Indeed, this may go so far that the role of the national court primarily is to confirm an agreement by the parties. Thus, in these Member States it is often left to the parties to draw up a draft for the order for reference, including a description of the facts, and not just for the actual questions to be referred.³

Whilst the latter approach has practical advantages, experience has shown that it may also lead to an exaggeration of the complexity of the legal problems and to an inflation of the number of questions, including questions which may prove to be neither particularly important for the resolution of the case nor especially difficult to answer for the referring court. Moreover, the parties are not—and cannot be expected to be—objective vis-à-vis the case and this is likely to affect both the formulation of the questions and the presentation of the facts. Therefore, where a national court leaves it to the parties to make a draft for the reference it is important that the court retains firm control over the reference so that the parties’ influence does not become excessive; otherwise there will be a risk that the reference will reflect too much the claims of the parties and be less concise and suitable for obtaining a preliminary ruling.⁴

In any event, it is recommended that the national court consults the parties on the proposed questions before submitting the reference to the Court of Justice. Such involvement may not only forestall complications after the Court of Justice has handed down its judgment; it may also help the national court improve the preliminary reference, for instance by correcting or supplementing the facts given therein or by enabling the court to make the questions more to the point. Indeed, it may even be that following such consultation with the parties the national court finds that a reference is not necessary and instead decides the questions itself.

2. The Form of the Reference

Previously it was not a formal requirement that a preliminary question was explicitly formulated as such, as long as it was clear from the reasons given in the order for reference what issues were raised.⁵ Nevertheless it was unquestionably an advantage if the reference was built up around one or more questions. The formulation of an actual question made it easier for the Court of Justice to identify the issues in doubt which the national court sought help in resolving. Indeed, with the 2012 Rules of Procedure Article 94 now lays down that a request for a preliminary ruling shall contain ‘the questions referred to the Court for a preliminary ruling’. In addition, upon receipt of the reference, a brief statement is published for information purposes in the Official Journal of the European Union, series C. This information normally takes the form of stating the questions asked.

EU law does not contain any special rules on the procedure by which national courts must decide on making a reference for a preliminary ruling; this is a matter for national law.⁶ Thus, for instance, where a reference is made by a collegial court, EU law does not regulate whether the questions must be formulated and approved by all the judges, or whether, for example, the presiding judge or a delegated judge can be authorized to draw up and refer the questions.⁷ Nor does EU law bind national courts with regard to whether the reference is made by a decision, an order, or a judgment.⁸ In this respect national practice varies although the most common form in which a submission for a preliminary reference is made is as a regular decision or an interim decision of a normally constituted session of the referring court.⁹ Indeed, EU law does not preclude a preliminary reference being made as part of a final judgment with respect to matters not covered by the reference for a preliminary ruling; however, the desirability of having a reference that is to the point and does not require unnecessary translation work militates in favour of not combining these two decisions into one single order.¹⁰

The reference should not be sent via diplomatic channels but directly to the Court of Justice, addressed to the Registry of the Court of Justice, rue du Fort Niedergrünewald, L-2925 Luxembourg. EU law does not contain deadlines in relation to the time which may elapse between the decision to make a reference and the receipt of the questions by the Court of Justice. However, with a view to limiting the length of the proceedings, the questions should be sent as soon as possible.¹¹

The order for reference should be drawn up in the language of the proceedings of the referring court (provided that this is one of the languages listed in Article 36 of the Court’s Rules of Procedure). In order to minimize the risk of misunderstanding, the reference should be made in one document rather than several with cross-references between them.¹²

With a view to providing the Court of Justice with the best possible basis for giving a ruling that can be applied, the referring court should not merely forward the order for reference itself, but also a copy of all the relevant documents in the case.¹³ The reference should also state the names and addresses of the parties and their legal representatives so that the Court of Justice can easily notify the preliminary reference to them and indicate the deadline for presenting observations in the case. If a party changes his legal representative, he should notify the Court of Justice of this change as soon as possible.

3. The Content of a Reference

3.1. The Need for a Thorough Order for Reference

The Court of Justice tries to avoid making abstract and thereby unforeseeably wide-ranging decisions. Its rulings must be applied in order to ensure a correct and uniform application of EU law, and the Court of Justice, therefore, seeks to give the referring court an answer which provides that court with the best possible help for deciding the dispute in the main proceedings. If the Court of Justice has not been adequately apprised of the factual and legal background to the questions submitted, there is a risk that its reply may be beside the point resulting in an incorrect application of EU law in the main proceedings. In order to ensure that the Court of Justice receives the necessary information to render an adequate ruling, Article 94 of its Rules of Procedure lays down that a request for a preliminary ruling shall contain:

On the basis of the information in the preliminary reference, the observations presented directly to the Court, and any enclosed case file of the main proceedings, the Court of Justice will often be able to establish the necessary information about the factual and legal background to the case. However, this task can make unreasonable demands on the resources and time of the Court of Justice which is entitled to expect that the national courts ensure that there is sufficient information on a case referred for a preliminary ruling. Even where the Court of Justice does its utmost to gain an overview of the case, the risk of misunderstanding cannot be entirely ruled out. Moreover, the Court of Justice can only avoid answering hypothetical questions if the national court states the reasons why it finds that a ruling on the questions referred is necessary for deciding the dispute in the main proceedings.¹⁴ There is thus a close connection between on the one hand the Court of Justice’s control over the exercise of its jurisdiction and the requirement that a preliminary ruling should actually be of use to the referring court, and on the other hand the consequent requirement that there should be an adequate description of the questions at issue and their background.

In EVN, the object of the review proceedings brought in the main proceedings was, inter alia, the annulment of an invitation to tender in its entirety and the annulment of a series of individual conditions in the contract documents and of a number of decisions of the contracting authority relating to the requirements established by the award and selection criteria used in the tender in question. It transpired from the referring Austrian court’s order for a preliminary reference that all the decisions and conditions whose annulment was sought in the main proceedings had a decisive effect on the outcome of the tender procedure. In contrast, the referring court had not provided any explanation as to the precise reasons why it considered that an answer to the question of the compatibility of a provision in the Austrian legislation with the EU rules on public procurement was relevant to the case pending before it. Since there was no information before the Court of Justice to show that an answer to that issue was needed in order to resolve the dispute, the Court of Justice regarded the questions as hypothetical and, accordingly, inadmissible.¹⁵

In Plato Plastik, the referring court sought, among other things, guidance on whether the Austrian system for recovering and recycling waste was compatible with the competition rules, the fundamental freedoms, and the proportionality principle. After deciding on the admissibility of several other questions in the same case, the Court of Justice stated that it was not clear that an answer to the remaining questions would have any effect on the outcome of the main proceedings. Consideration of the existence of any such effect and, if necessary, the examination of those questions were further complicated by the fact that the order for reference contained little information on the factual situation. Moreover, the referring court had not explained the connection between each of the provisions of EU law of which it sought interpretation and the factual situation. Without this information, it was not possible to ascertain the specific problem of interpretation which could arise in relation to each provision. Therefore, as the particulars in the order for reference were too imprecise with regard to the legal and factual situations to which the questions related, the Court was unable to ascertain the specific problem of interpretation that the national court was facing and thus to give a useful interpretation in that respect. It therefore declined to answer those questions.¹⁶

In Austroplant-Arzneimittel, the Court of Justice had asked the referring court to explain the basis for the claim of the plaintiff in the main proceedings, as well as clarification of how an answer to the questions asked could be relevant to the decision of the case. In its reply, the national court had essentially restricted itself to setting out the arguments made by the plaintiff and saying that the case raised a question about Austria’s implementation of Directive 89/105 on the transparency of measures regulating the pricing of medicinal products. However, the national court did not indicate in more detail which provisions in the directive were questioned, nor did it describe how the national law might have implemented them incorrectly. The Court of Justice found that the national court’s reply did not contain a necessary explanation of how an answer to the national court’s preliminary questions could be relevant to the main proceedings. It therefore declined to answer these questions.¹⁷

The requirement for the order for reference to throw light on the relevance of the questions applies in particular when the questions cast doubt on the validity of the legislation of a Member State other than that in which the referring court is situated.¹⁸

In Bacardi-Martini, the Court of Justice stated that it displays special vigilance when, in the course of proceedings between individuals, a question is referred to it with a view to permitting the national court to decide whether the legislation of another Member State is in accordance with EU law. For this reason, where the questions referred are intended to enable the national court to assess the compatibility with EU law of the legislation of another Member State, the Court must be informed in some detail of why the referring court considers that answers to the questions are necessary to enable it to give judgment. In the case in question the national court had limited itself to stating the arguments which one of the parties in the main proceedings had put forward. In the opinion of the Court of Justice the referring court had not lived up to this requirement. Not even after being asked to explain the relevance of the question referred, had the national court stated whether it found that an answer to the question was in fact necessary to enable it to make a decision. Nor had the national court explained why the foreign law should be interpreted in such a way as to make the question relevant. The question would only be relevant if the legislation in question were given extraterritorial effect. However, before the Court of Justice the government of the Member State whose legislation was the subject of the question had disputed that the legislation had such extraterritorial effect. On this basis the Court of Justice found that it did not have the material before it to show that it was necessary to rule on the compatibility with EU law of legislation of a Member State other than that of the referring court. The question was thus declared inadmissible.¹⁹

Finally, the information provided in an order for reference must not only be such as to enable the Court of Justice to reply usefully but must also enable the governments of the Member States and other interested parties to submit observations pursuant to Article 23 of the Statute of the Court of Justice. If the preliminary reference does not make it possible to clearly identify the relevant legal topic, there is a risk that those States and other bodies will refrain from presenting their observations to the preliminary case and thus deprive the Court of Justice of relevant information and arguments. There is also a risk that a State may feel ambushed by a preliminary ruling on legal questions of major importance about which it had a significant interest in expressing a view before the Court of Justice makes its ruling, but could not detect because of the low quality of the reference. This situation is underlined by the fact that not only can a preliminary ruling indirectly overrule the national law, which is relevant to the case before the court, but it can also overrule equivalent legislation in other Member States. On this basis, the Court of Justice has stated that, by means of its examination of the admissibility of questions, it will ensure that the possibility to submit observations is safeguarded, bearing in mind that, by virtue of the above-mentioned provision, only the orders for reference are notified to the interested parties.

The practice was laid down in Holdijk where the Danish government argued that the incompleteness of the preliminary references did not enable it to submit observations on the substance of the case. The Court of Justice acknowledged that, as a matter of principle, Article 23 of the Court’s Statute means that an order for reference must give an account of the relevant facts and national law in such a way as to make it clear to the Member States and EU institutions what the case is about.²⁰

The first reference for a preliminary ruling in 1961 already demonstrated that an incomplete and superficial order for reference might, in practice, make it impossible, on the one hand, for those entitled to present observations to make meaningful submissions and, on the other hand, for the Court of Justice to give a ruling that is sufficiently precise to be usable by the referring court.²¹ Until the mid 1990s, the Court of Justice nevertheless adopted a mild approach and only in very rare cases refused to give rulings on unsatisfactorily formulated references. Instead, it reacted to them by giving vague and abstract rulings of limited value for the referring court. However, a change of practice was introduced in 1993 with Telemarsicabruzzo,²² since when dismissal of defective references has become the norm.

This change in practice was not unconnected with the different challenges with which the Court of Justice had then begun to be faced. Previously the Court had reason to encourage the national courts to make references and thereby to strengthen both knowledge about EU law and the recognition thereof while at the same time establishing the basic principles in the interplay between national law and EU law. Today, among other things because of the preliminary rulings procedure, these aims have largely been realized, even though there may still be significant challenges in respect of the newer Member States. Presently, the challenges tend to be related to resource limitations. In order for the Court of Justice to have time for a thorough examination of each case it is necessary to keep down the number of references.²³ The Court’s practice in dismissing inadequate references has, however, not been used to eliminate ‘uninteresting’ cases, as is known from the certiorari principle applied by the US Supreme Court. Even though the Court’s tightening up of the practice seems to reflect a policy decision, it is only used to dismiss cases where it would be difficult to render a judgment which gives a useful answer to the referring court. Hence, the tighter practice is not used as a strategic mechanism to actively reduce the volume of cases handled.²⁴

It has been argued that the stricter practice of the Court of Justice risks leading to a lack of uniformity in the application of the law. Unless it chooses to make a renewed reference after its first reference has been dismissed, a national court is left to its own devices. This involves a risk that it will take a decision based on a mistaken application of EU law.²⁵ This criticism is not convincing. The alternative to the Court dismissing a reference is not that it gives a detailed answer, where the facts and the national law are integrated in a preliminary ruling in such a way as to really be decisive for the dispute in the main proceedings. On the contrary, the alternative is that the Court renders a vague and meaningless response which will in any event not give the national court genuine guidance in deciding the main proceedings.²⁶

It has also been argued that the Court’s practice risks deterring national courts from making references, for fear of being met with an inadmissibility order. In this connection it has been emphasized that very few judges, in the course of their career, have more than one, or at most a very few occasions to formulate an order for reference. It can thus be difficult for a national court, where neither the judge nor the parties to the case are used to working with EU law, to formulate a precise and detailed order for reference.²⁷ However, this risk is considerably reduced by the fact that the Court of Justice has published recommendations to national courts on how a reference should be framed.²⁸ Moreover, the incentive to make a reference is hardly likely to be increased if, instead of rejecting the reference as inadmissible, the national court receives a preliminary ruling which is formulated in such general terms that it will be of little use.