The Preliminary Ruling
1. Judgment or Order?
Traditionally, decisions on questions referred for a preliminary ruling have been given in the form of a judgment. However, where a question referred to the Court of Justice is identical to a question on which the Court has already ruled, it may, according to Article 99 of the Court’s Rules of Procedure, after hearing the Advocate General, give its decision by reasoned order.1 The same applies where the answer to such a question may be clearly deduced from existing case law, or where the answer to the question referred for a preliminary ruling admits of no reasonable doubt. Moreover, where several pending cases raise identical issues and are deliberated simultaneously, the Court sometimes chooses to hand down judgment in the case that has been pending the longest and to use this judgment as a paradigm with regard to the remaining cases.2 The aim of allowing decisions to be made by means of an order is to ease the burden of the Court of Justice and to reduce the time taken to deal with a case. Indeed, the use of Article 99 means that the case can be decided solely on the basis of the written submissions and without the Advocate General being required to give an Opinion. Under the former Rules of Procedure, the procedure for deciding whether or not to apply Article 104(3) of the Rules of Procedure differed according to the reasons for which it is invoked, and in some cases, the Court had to inform the referring court of its intention to make a decision by means of an order and give the parties in the main proceedings and other interested parties the opportunity to express a view thereon. This obligation was abolished with the 2012 Rules of Procedure. Today, the Court is never obliged to inform the national court and hear the parties before it decides to render its decision by order.
Whereas it is easy to see when this procedure is being applied because the Court has already ruled on the question or because the answer can easily be deduced from existing case law, the Court has hitherto been more reticent in explaining why a case does not give rise to any reasonable doubt and for this reason is covered by Article 99. Nevertheless, it seems clear that the most important requirement is that the Court finds the answer to be straightforward. In most of the rulings, this is reflected by a clear (and often short) line of argument. Another important factor appears to be that prior case law may be advanced in support of the answer albeit without this amounting to acte éclairé.3 The provision has also been used in some cases where the Court of Justice concludes for the first time that a given national legislation is contrary to a provision in one of the Treaties.4 Moreover, whilst the most straightforward cases are normally allocated to chambers of three judges (ie the smallest chambers), several Article 99 cases have been decided by five-judge chambers.5 Finally, in a large proportion of the cases it would seem as if the interpretation will likely be of only limited general relevance to national court cases other than the one in the main proceedings.6
Pursuant to the fifth subparagraph of Article 20 of the Court’s Statute, the Court may also, after hearing the Advocate General, proceed to a judgment without an Opinion. Moreover, Article 99 only grants the Court a right to proceed by way of a reasoned order when the conditions set out in this provision are fulfilled, but the Court is never obligated to use this possibility; it may always choose to decide the case in the form of a judgment.7
Regardless of whether the decision is made by a judgment or an order, the Court’s decision will be without dissenting opinions as its Rules of Procedure do not provide for this possibility.8 The decision is sent to the referring court and to all those who were originally informed about the preliminary reference.
2. Reformulating the Question Referred
2.1. Overview
While the Court of Justice has jurisdiction to interpret EU law, it is for the national court to apply the Court of Justice’s interpretation in the main action. Or, to put it differently, within the framework of the procedures for preliminary rulings, it is for the national court to decide whether EU law applies in the case before it, and whether a given national law provision is in accordance with EU law. This means that the question for preliminary ruling should be formulated, in principle, as an abstract enquiry about the interpretation of EU law, and not as a question about how the dispute in the case before the national court should be decided.9
Where a national court nevertheless refers such a direct question, the Court of Justice will seldom dismiss it. Instead, it will seek to reformulate the question so as to respect the allocation of jurisdiction between the Court of Justice and the national court.
In Placanica, which concerned a criminal prosecution in connection with a game of chance, an Italian court referred to the Court of Justice a question as to whether an Italian legal provision was compatible with the Treaty rules on freedom of establishment and the freedom to provide services. In its question the Italian court requested the Court of Justice to consider whether the criminal provisions which were referred to in the indictment in the main action could apply in the Member State. Several of the Member States that submitted observations in the case argued that the Court of Justice should refuse to rule on the question as it concerned the interpretation of national law. In its decision, the Court of Justice emphasized that it was for the national courts and not for the Court of Justice to interpret national provisions. The Court of Justice also stated that, on a literal reading of the question referred for a preliminary ruling, it had been asked to rule on the compatibility with EU law of a provision of national law. Although the Court could not answer that question in the terms in which it was framed, there was nothing to prevent it from giving the national court guidance as to the interpretation of EU law to enable the latter to rule on the compatibility of national law with EU law.10
Similarly, the Court of Justice will not refuse to answer an inappropriately framed reference, as long as the reference contains the information which is necessary for the Court to make a usable ruling.11
According to some political scientists the Court of Justice’s decision as to whether it should redefine the issues presented to it by the referring court is to a considerable extent determined by what they have labelled the Court’s ‘own policy agenda’ of further integration.12 Thus, it has been argued that the Court exploits an ‘institutional loophole’ in the preliminary procedure in order to increase its autonomy as a court and that it primarily does so when the ruling in question is not likely to come under extensive scrutiny by a wider audience. We are not going to engage in a discussion of these conspiracy theories. However, we would like to make clear from the outset that we do not subscribe to them. Of course judges do not operate in a political void, but to claim that they engage in ‘strategic manoeuvring’ in order to pursue hidden ‘agendas’—without really underpinning these claims on serious documentation—appears to us to be exaggerated.13
The remainder of this chapter is devoted to an examination of the way in which the Court of Justice either limits or reformulates the questions referred in order, on the one hand, to uphold the division of tasks between itself and the national courts and, on the other hand, to be able to tailor its decision to the specific case, so that the referring court is given the best conditions for applying the preliminary ruling in its own decision.14
2.2. The Preliminary Question Is Narrowed Down
Sometimes a preliminary question relates to EU law in its entirety, without specifying which particular provisions the national court considers to be relevant.15 In such cases, if the Court of Justice is able to identify potentially relevant provisions of EU law, it will limit its examination to these provisions. The Court may also limit the extent of the question as such. For example, where the question concerns the validity of an EU rule, the Court of Justice has sometimes adopted an interpretation that removes the basis for the objection to validity and thus makes the preliminary question hypothetical.16 Similarly, the Court consistently refrains from answering questions whose relevance lapses on the basis of the answer the Court has given to other questions in the same case.17
The Court of Justice most frequently reformulates preliminary questions where the questions exceed the Court’s powers under Article 267. Typical examples are questions concerning the correct interpretation of national law,18 questions concerning the assessment of facts and evidential issues,19 and questions asking the Court to rule directly on the compliance of national law with EU law.20 In such cases, the Court of Justice declines to answer the question in the form it has been put and instead provides the national court with a ruling on the interpretation of EU law so as to enable that court to determine whether such compatibility exists in order to decide the case before it.21
Outside these situations too, the Court of Justice has a marked tendency to reformulate a question so that it can be answered in such a way as to give the greatest help to the referring court to make the correct decision in the main proceedings.
In Mau, the Court of Justice observed that the questions referred partly concerned the interpretation of national law and the assessment of its conformity with EU law. Since the Court did not have jurisdiction to reply to such questions, it found it necessary, as a preliminary step, to define the subject matter of the reference for a preliminary ruling. The Court further noted that the documents before it showed that the national court was faced with essentially two problems concerning the calculation of salary claims and the effect of national law being in conflict with EU law. The Court then went on to examine those two problems before replying specifically to the questions referred, in the form in which these questions had to be reformulated by the Court in order to respect the division of the competence between the Court of Justice and the referring court.22
Whilst seeking to assist the referring court in the resolution of the actual dispute, the Court sometimes also chooses to reformulate a question in such a way as to make it unnecessary for it to decide on controversial or doubtful questions of law. Thus, for that reason alone, reformulation should not be seen as an indication that the referring court did not manage to make a proper reference.
In Caterino, an Italian court referred a question to the Court of Justice on whether a provision in a directive on the transport of waste only applied to professional waste collection or whether it also applied to any commercial undertaking which transported its own waste. The question arose from a criminal case against a person whose business could not be characterized as being that of a professional waste collector. According to the referring court, the prohibition in Italian law implementing the directive only applied to cases where waste was transported by those who carried on business as waste removers. However, in connection with the handling of the criminal prosecution, the question arose as to whether criminal liability could be inferred directly from the directive. The Court of Justice refrained from answering this question. Instead, it referred to the established case law that a directive cannot of itself impose obligations on an individual and cannot therefore be relied upon as such against an individual.23
From time to time, national courts refer preliminary questions that are based on an incorrect interpretation of EU law. In such cases, instead of merely answering the question in the form they are asked, the Court of Justice will normally inform the referring court of the correct interpretation of the EU rules in question. Normally, the answer will thereby show that the question is irrelevant for the resolution of the dispute in the main proceedings. This approach gives the referring court a usable answer which can either form the basis of a renewed reference for a preliminary ruling, or which can help it decide the dispute in the main proceedings.
In Celestri, the Court of Justice was requested to decide on the validity of a Commission communication from 1981 amending the basic prices of certain iron and steel products. The Court noted that this communication did not apply to the facts in the main proceedings since these were dealt with in a Commission recommendation from 1978. Furthermore, the national court’s question was to be understood as calling into question the validity of the 1981 communication only on the assumption that the communication was applicable at the time of the events in question. The Court of Justice thereafter found that it was not necessary to give a ruling on the validity of the Commission communication.24
In Bulthuis-Griffioen, a question was referred to the Court of Justice about the interpretation of the term ‘systematically aim to make a profit’ in Article 13 of the Sixth VAT Directive. The Court stated that, in order to provide the national court with a reply which would assist in resolving the main proceedings, it was first necessary to ascertain whether the provision was in fact applicable in the main proceedings. In the view of the Court of Justice this was not the case, as the national court had overlooked that the relevant part of the provision only applied to legal persons and not to the natural person who was a party in the main proceedings. In those circumstances, the Court of Justice found that it was not necessary to answer the preliminary question as such. Instead, the reply given to the national court was that the directive was to be interpreted as meaning that a trader who is a natural person was not covered by the provision in question.25
Shearson Lehmann Hutton concerned various questions on the rules in the Brussels Convention on jurisdiction in proceedings concerning contracts concluded by consumers. The Court of Justice noted that it was apparent from the order for reference that the main proceedings were brought not by a private individual, but by a company. Therefore, instead of merely answering the question referred, the Court first considered whether a plaintiff, such as the plaintiff in the main proceedings, could be regarded as a consumer that benefited from the special rules governing jurisdiction laid down by the Convention with respect to consumer contracts. The Court found that this was not the case and concluded on that basis that it was not necessary to give a ruling on the specific questions that had been put to it.26
Where the relevance of the EU rules referred to in the preliminary question gives rise to doubt, the Court of Justice will normally interpret these rules. Depending on the level of doubt, it will then either stick to the doctrine that it is the referring court that is best positioned to evaluate the relevance of the question,27 or it will, while answering the question referred, draw the attention of the referring court to the fact that the Court entertains doubt about the relevance of the question, thereby indirectly encouraging the referring court to examine the question more closely.
In William Hilton & Sons, the Court of Justice stated that it was possible that the facts of the case were such that the question should be decided solely on the basis of national law. The Court then answered the preliminary question on the premise that the regulation which the question concerned was in fact applicable to the facts of the case.28
In Douwe Egberts, several of those entitled to present observations in the preliminary procedure raised doubts as to whether the product concerned in the main proceedings was covered by the directive which the national court wanted interpreted. The Court of Justice remarked that it found it appropriate to reply to the questions referred on the basis of the premise of the order for reference, namely that the product did have the characteristics in question so as to come within the scope of the directive.29
2.3. Inclusion of Other EU Law Provisions
The Court of Justice shows no reticence in taking into account other EU law provisions than those referred to in the order for reference. In order to be able to give a useful answer to the questions asked, the Court can provide the referring court with all the elements of interpretation of EU law that are relevant for deciding the dispute in the main proceedings. This frequently means that the Court refers to EU rules which the national court appears not to have taken into account.30
As explained in section 2.2 herein, where a preliminary question concerns a different EU law rule than that which the Court of Justice finds relevant to the main proceedings, the Court will not normally give a ruling by interpreting the EU provision referred to in the preliminary reference since such an answer would be both irrelevant and hypothetical. Instead, the Court will simply answer the question by interpreting the relevant EU provision.31 Such reformulation of a preliminary question arises, for example, where a national court refers to the Treaty rules on freedom of movement and the Court of Justice concludes that the issue in question has been harmonized by a directive or a regulation.32 The same is true where the preliminary question refers to provisions which have either not entered into force or are no longer in force at the relevant date for the main proceedings. In such situations, the Court of Justice has chosen to deal with the question by interpreting the EU provisions which were in force at the material time rather than by interpreting the provisions mentioned in the preliminary reference.33
In Gerritse, the Court of Justice was asked to assess whether some German tax rules infringed the right of establishment in what is now Article 49 TFEU. The Court noted that the citizen concerned was resident in the Netherlands and that the taxation measure in dispute related to a business carried on for a limited period in Germany. It therefore found that the question was more concerned with the freedom to provide services laid down in (now) Article 56 TFEU than with the right of establishment, and it thus answered the question, as reformulated, by reference to Article 56.34
The Court’s readiness to reformulate the preliminary question is sometimes criticized for intruding on the competence of the national court to decide for itself which problems it needs assistance with. In the great majority of cases, this criticism is unwarranted. Admittedly, there have been occasions when the referring court has found the Court of Justice’s reformulation of the problem to be less than beneficial for the solution to the problem and where the Court of Justice thus did not succeed in giving the guidance sought.35 However, the reformulation of the question is normally merely a natural consequence of the fact that, when the national court has laid out the factual basis of the dispute, the Court of Justice is best qualified to decide on the content of EU law and thus is the most capable of deciding which EU rules are relevant for the decision in the main proceedings. Only in this way can the Court of Justice attain the purpose of the preliminary ruling procedure. Indeed, it would not be in the spirit of cooperation underpinning Article 267 if the Court of Justice were to provide the referring court with an answer that would not assist the latter in reaching a correct decision. By guiding the referring court towards the relevant elements of EU law the Court of Justice is much more faithful to that spirit of cooperation. If the Court had not taken that approach, the dialogue between courts introduced by Article 267 would have depended too much on the particular national court which refers the question, so that, depending on the way that court worded the question referred for a preliminary ruling, it could determine the answer. Indeed, it has happened that the Court has given divergent answers to the very same factual situation because of different formulations of the preliminary questions in the different cases.36
Where the Court of Justice finds that an EU rule not referred to by the referring court is irrelevant to the resolution of the dispute in the main proceedings, it will normally dismiss a request from a party entitled to present observations before the Court that this other EU rule should be included in the preliminary ruling.37 However, in special circumstances, the Court of Justice has agreed to assess an EU rule which the Commission has found relevant in its observations only to dismiss the Commission’s interpretation of the rule in question. This departure from normal practice has hitherto occurred when the Commission’s view of the law concerned a problem that was important both in principle and practice, and where the Court has thus found it appropriate to clarify the law so that future cases on the same problem could be avoided.
In Lindfors, the Court of Justice was asked to decide whether Directive 83/183 on tax exemptions applicable to permanent imports from a Member State of the personal property of individuals gave Union citizens the right to import a used car free of tax when moving to another Member State. The Commission argued that this was so. At the same time the Commission argued that the provision in what is now Article 21 TFEU, on the fundamental right to freedom of movement for Union citizens, was relevant to the case. In the opinion of the Commission, the combined effect of the directive and this Treaty provision was that the receiving Member State could not impose a registration tax when the registration was due to the fact that a Union citizen, in connection with moving his place of residence, wanted to import his car which had previously been registered in the Member State he was leaving. The Court of Justice held first that the directive did not prevent the imposition of a registration tax, as argued by the Commission. It then assessed the relevance of the Treaty provision, even though it had not been mentioned in the preliminary question. The Court thereafter dismissed the Commission’s interpretation of the Treaty provision and held that it should not be interpreted as meaning that a Union citizen could not be worse off from a tax point of view than the situation he was in before moving.38