The Procedure before the Court of Justice

10

THE PROCEDURE BEFORE THE COURT OF JUSTICE


1. Overview


The procedure for references for preliminary rulings given in the form of a judgment consists of the following stages:



• Translation of the reference, or parts thereof, into all the official languages (except, in certain cases, Irish and Maltese), and the subsequent publication of a summary of the reference in the Official Journal of the European Union.1


• Notification of the reference to the parties to the main proceedings, the Member States, the EU institutions, the EFTA Surveillance Authority, Norway, Iceland, and Liechtenstein as well as, in some cases the Swiss.


• Submission of written observations.


• Translation of the written observations into French, the working language of the Court of Justice. At the same time the President of the Court assigns the case to a Judge-Rapporteur just as the First Advocate General assigns it to one of the Advocates General.


• Notification of the written observations in their original language, in French and in the language of the case.


• Drawing up by the Judge-Rapporteur of a Preliminary Report (rapport préalable).2 This report is made for internal use and treated as confidential. It identifies the relevant legal issues and their likely ramifications. It is used, inter alia, to decide whether the reference should be dismissed as inadmissible by way of a reasoned order and, if not, how many judges should take part in deciding the case, whether there is a need for an oral hearing, and whether it should be decided with or without an Advocate General giving an Opinion. The Preliminary Report is discussed at a so-called General Meeting (réunion générale).


• The oral procedure, which is normally concluded with the Advocate General’s Opinion.3


• Deliberation and voting by the judges and preparation of the judgment.


• Translation of the judgment.


• Signing and delivery of the judgment.


In 2012 it took on average 15.7 months to give a preliminary ruling.4


2. Notification of the Decision to Make a Reference


According to Article 23 of the Statute of the Court of Justice, it is for the referring court itself to notify the Court of Justice of its preliminary question. Following the Court’s receipt of the preliminary reference, the question is published in the Official Journal and notified to the parties in the main proceedings; to the governments of the Member States;5 to the Commission; and to the institution, body, office, or agency of the Union which adopted the act the validity or interpretation of which is in dispute. Moreover, the Registrar also gives notice of the reference for a preliminary ruling to the EFTA Surveillance Authority and to the three EFTA States that are party to the EEA Agreement (Iceland, Liechtenstein, and Norway).


Where an agreement relating to a specific subject concluded by the Council and one or more non-Member States provides that those States are entitled to submit observations where a court of a Member State refers a question falling within the scope of the agreement to the Court of Justice for a preliminary ruling, the decision of the national court containing that question shall also be notified to the non-Member State(s) concerned. For example, the non-Member States Iceland and Norway, which are parties to an association agreement to the Schengen Agreement, will be notified of preliminary questions concerning the Schengen Agreement in order to allow them to present observations in cases on that agreement. In this situation Article 98(2) of the Court’s Rules of Procedure provides that the decision of the referring court shall be communicated to the non-Member State in the original language version together with a translation of the decision into French or, where appropriate, of a summary into one of the official EU languages, to be chosen by the third State concerned.


According to Article 98(1) of the Court’s Rules of Procedure, where appropriate, on account of the length of the referring court’s reference, a full translation thereof may be replaced by the translation of a summary of the reference into the other official languages. The summary shall include the full text of the preliminary question(s). It shall also, in so far as that information appears in the national court’s decision, summarize the subject matter of the main proceedings and the essential arguments of the parties in the main proceedings, and provide a succinct presentation of the reasoning in the reference for a preliminary ruling and the case law and the provisions of EU and domestic law relied on.6


Until 2011 notification had to be made in the form of a registered letter. However, with the Court’s decision of 13 September 2011 on the lodging and service of procedural documents by means of e-Curia,7 it is now possible to lodge and serve procedural documents by electronic means via the so-called e-Curia application. The use of e-Curia necessitates the opening of an account giving access to the functionalities of e-Curia. Such an account can be opened for free by agents and lawyers authorized to practise before a court of a Member State or of one of the EFTA States that are party to the Agreement on the European Economic Area. Once such an account has been opened, the agent may use e-Curia in every case in which he or she has been appointed as a representative.


E-Curia allows representatives to lodge procedural documents (together with any annexes) electronically, without the need for such lodging to be confirmed by post. A procedural document lodged by means of e-Curia shall thus be deemed to be the original of that document for the purposes of the Rules of Procedure where the representative’s user identification and password have been used to effect that lodgement. Such identification shall constitute the signature of the document concerned. The document concerned is deemed to have been lodged at the time of the representative’s validation of lodgement of the document. Procedural documents lodged by means of e-Curia must be transmitted in PDF format (image and text).


As a rule, the lodging of a procedural document by means of e-Curia means that the representative will lodge subsequent documents in the same case in the same way. However, the lodging of a procedural document by means of e-Curia in a case does not preclude a document from being lodged subsequently in the same case by any other means of transmission, if so required by the nature of the document concerned.


E-Curia also allows the Court of Justice to serve procedural documents electronically. Indeed, where a representative has lodged a document in a case by means of e-Curia, any documents to be served in connection with that case will, as a rule, be sent to him by means of e-Curia. Irrespective of the representative’s chosen method of lodgement, service of documents will also be effected by means of e-Curia where, in accordance with the requirements of the Rules of Procedure, the representative has expressly agreed to accept service of documents by electronic means for the purpose of a particular case.


3. Observations on the Preliminary Reference


3.1. Those Entitled to Submit Observations


Article 96(1) of the Court’s Rules of Procedure lays down that the following are authorized to submit observations to the Court:



The formulation of Article 96(1)(b) indicates that a Member State may always present observations and that this is the case also in relation to cases concerning EU rules that do not apply in the Member State in question, for example because that State either has invoked an opt-out clause or has not exercised an opt-in clause in the area concerned. Indeed, even though the former Rules of Procedure did not contain a similar provision, the prevailing view was that such Member State observations had to be allowed considering that any case may raise issues of general legal or political importance affecting even Member States that are not bound by the particular provision in question.9


In Tessili, the Court allowed the UK and Ireland to submit observations in a preliminary reference from a German court concerning the Brussels Convention notwithstanding the fact that neither of these States was a party to the Convention. To a large extent the Court based its reasoning on the fact that the two States were required to become parties to the Convention at a later stage. Hence, the ruling does not directly lay down the law for situations where a Member State is not required to accede to the relevant EU rule in the future.10


It is for each Member State to lay down in its legal order which body or bodies may submit observations on its behalf. Where the internal constitutional competence pertaining to the preliminary questions is divided between different bodies of a Member State this has sometimes led to different bodies of that State submitting observations on different questions in a given case. Moreover, where a public body is party to the main proceedings, it is for the State in question to decide whether the observations should also be made by State bodies other than the one taking part in the national proceedings. Occasionally, this has led to the same State presenting different views on the same question.11


As regards other EU institutions, bodies, offices, or agencies than the Commission, the right to present observations is limited to cases where an act whose validity or interpretation is in dispute originates from one of them.12 In practice, the Court notifies the institutions to a greater extent so that the institutions themselves assess whether to submit observations, subject to control by the Court.13


As concerns the EFTA Surveillance Authority and the EFTA States that are party to the EEA Agreement, the right to present observations before the Court of Justice is limited to situations where the preliminary question concerns one of the fields covered by the EEA Agreement.14 This condition is fulfilled not only when the preliminary question refers to provisions in the EEA Agreement, but also when the answer to the question hinges upon the interpretation or validity of a provision in EU law that has a counterpart in the EEA Agreement.15 With regard to third countries covered by an agreement entitling them to submit written observations in certain types of cases, Article 23 of the Court’s Statute and Article 98(3) of its rules of Procedure foresees that notification is only given in so far as the third country concerned has the right to submit observations in the case at hand.


In practice, although making a certain selection, the Court’s registrar seems to notify preliminary references to third states and institutions that may only intervene in certain types of cases without first examining in detail whether the State or institution concerned does indeed have a right to present observations in the relevant case. Notification is thus not in itself a guarantee that the Court will accept observations from the notified party.


As for the ‘parties to the main proceedings’, Article 97(1) of the Rules of Procedure prescribes that the question as to who are determined as such is to be decided by the referring court in accordance with national rules of procedure. Hence, natural or legal persons may only submit observations to the Court of Justice if they are either parties to the main proceedings or have been granted the right to intervene in those national proceedings before the referring court in accordance with national rules on the administration of justice.16


In Biogen, a company that was not party to the main proceedings sought leave to intervene in the preliminary procedure before the Court of Justice in order to submit observations on the preliminary reference. In support of its request, the company argued that Article 40 of the Statute of the Court of Justice gives natural and legal persons the right to intervene in cases before the Court. The Court of Justice rejected the request, stating that the preliminary procedure did not envisage contentious proceedings designed to settle a dispute but prescribed a special procedure whose aim is to ensure a uniform interpretation of EU law by cooperation between the Court of Justice and the national courts and enabling the latter to seek the interpretation of EU provisions which they have to apply in disputes brought before them. The right to present observations before the Court of Justice in connection with a reference for a preliminary ruling therefore has to be assessed exclusively on the basis of Article 23 of the Statute. The Court of Justice went on to state that the reference in this provision to ‘the parties’ referred solely to the parties to the action pending before the national court.17


In Satakunnan Markkinapörssi and Satamedia, the European Data Protection Supervisor applied for leave to submit observations on a preliminary question concerning Directive 95/46 on the protection of individuals with regard to the processing of personal data and on the free movement of such data. In support of his application, the Supervisor pointed to the fact that the Court had, in previous orders, recognized his right to intervene in direct actions before it. Moreover, he argued that the subject matter of the reference for a preliminary ruling was clearly within the limits of the task conferred on him. The Court declared the application inadmissible noting that Article 23 refers only to the parties to the action before the national court and that the Supervisor was not involved in this action.18


In ABNA, the French Conseil d’État had found it unnecessary to make a preliminary reference to the Court of Justice because the issue facing the Conseil d’État had already given rise to a pending reference from a UK court. One of the parties in the case before the Conseil d’État thereupon asked the Court of Justice for permission to present observations in the UK preliminary reference case arguing that otherwise it would be deprived of its rights of defence. The Court turned down that request. The argument pertaining to rights of defence should have been made before the Conseil d’État as it was for the national courts to consider whether such considerations should lead them to refer preliminary questions themselves even if the Court of Justice was expected to rule on the matter because of pending cases raising the same issue.19


Under the Court’s former Rules of Procedure, all persons who took part in national proceedings would be considered parties within the meaning of Article 23 of the Statute. Moreover, this was arguably so not only with regard to interveners, but also with regard to amici curiae in the main proceedings where this concept was recognized in the relevant national legal system.20


In comparison, with the new Rules of Procedure in 2012 a new provision was introduced in Article 97(1) which circumscribes, precisely, the concept of parties to the main proceedings. According to this provision, only parties recognized as such by the referring court are allowed to submit observations to the Court of Justice. In the explanatory remarks to the Court’s proposal for what is now Article 97, it is stated that the new rule reflects the Court’s concern not to allow the progress of cases to be delayed by multiple interventions during the proceedings, as well as its desire to remain within the framework outlined by the referring court or tribunal. Article 97 thus codifies the case law that had been established under the former Rules of Procedure according to which it was a condition that the right to intervene granted by the national court was not limited to the part of the case that consisted of the preliminary ruling.21 Moreover, Article 97 might imply a restriction of the right of an amicus curia to the main proceedings to present observations before the Court of Justice. Indeed, under Article 97(1) such a right does not seem to follow directly from a right in the national legal order to present observations in the main proceedings. Rather, such right seems to depend on whether, according to the national procedural law of the referring court, an amicus curia is considered to be one of the ‘parties’ to the main proceedings. If that is not the case, it seems doubtful whether the mere right to make its voice heard before the national court will suffice for a national amicus curia to be entitled to present observations before the Court of Justice.


Presumably, the same line of reasoning applies to interveners before the referring court. Therefore, where the legal system of a Member State distinguishes between several classes of interveners where some are considered to be parties to the case whereas others do not have that status, but merely have a right to present their views in support of a ‘genuine’ party, it would seem to follow from Article 97 that only the former group will be allowed to present observations in preliminary reference cases.


If someone becomes a party to the main proceedings after a reference has been made to the Court of Justice, he will also be entitled to submit observations to the Court of Justice from the date when leave is granted, for example in connection with the oral procedure before the Court of Justice. Indeed, according to Article 97(2) of the Court’s Rules of Procedure, where the referring court notifies the Court of Justice that a new party has been admitted to the main proceedings at a time when the proceedings before the Court of Justice are already pending, the new party must accept the case as it is at the time of this notification.


In Transporoute, the plaintiff in the main proceedings was declared insolvent after the national court had made a reference for a preliminary ruling. However, the national court allowed the administrator in insolvency to continue the main proceedings, and the Court of Justice therefore allowed the administrator to submit observations in the preliminary proceedings.22


A failure to present written observations does not affect the possibility of later presenting oral observations in the preliminary proceedings.23 Moreover, the fact that a party neither submits written nor oral observations does not imply that the Court of Justice will infer that that party implicitly consents to what is being stated and argued by others before the Court.24


The person or body submitting observations to the Court of Justice is entitled to make these observations public.25 Moreover, unless the referring court itself hides the names of private parties, the Court of Justice publishes these names in the list of both pending and closed cases, even where the preliminary reference originates in a Member States where the names of private parties are not made public. Acting ex officio or upon a duly reasoned request the Court may, however, choose not to divulge the names of a party in the main proceedings where the subject matter of the case justifies this.26


3.2. Observations by EU Institutions and Member States


The Commission always submits observations in preliminary reference proceedings. If a question directly concerns the validity of one of the Council’s legal acts it often—although certainly not always—submits observations. The Council has also submitted observations where an attack on another measure indirectly puts one of its own acts in issue. Moreover, it has submitted observations where the question concerned the interpretation of international agreements concluded between the EU and third States.


Rule 128 of the European Parliament’s Rules of Procedure establishes that the Parliament’s President shall submit observations or intervene in court proceedings on behalf of the Parliament after consulting the committee responsible. If the President intends to depart from the recommendation of the committee responsible, he shall inform the committee accordingly and shall refer the matter to the Conference of Presidents, stating his reasons. If the Conference of Presidents takes the view that the Parliament should, exceptionally, not submit observations or intervene before the Court of Justice of the European Union where the legal validity of an act of Parliament is being questioned, the matter shall be submitted to the plenary without delay. In urgent cases, the President may take precautionary action in order to comply with the time-limits prescribed by the court concerned. In such cases, the procedure provided for in this paragraph shall be implemented at the earliest opportunity. Before their adoption the European Parliament’s Rules of Procedure did not explicitly provide for the provision of observations. However, in a letter of 10 December 1997 to the President of the European Parliament the Chairman of the Committee on Legal Affairs and Citizens’ Rights had expressed the view that the Parliament had an obligation to defend the validity of its legal acts. With only few exceptions the Parliament therefore submitted observations in all preliminary proceedings that gave rise to questions of validity of its legal acts. In contrast, the Parliament has only exceptionally submitted observations in other types of case.


One such example is Heinrich, where the Parliament presented observations in a case where the subject matter in dispute was connected to the actions of the Parliament’s Civil Liberties Committee against disproportionate and ineffective counterterrorism measures.27


Generally speaking the observations of the EU institutions are of great value to the Court of Justice. In addition to assisting it in identifying the relevant case law, the institutions’ observations may contain recommendations for expanding or limiting a given line in the Court’s case law. Moreover, the EU institutions often provide a useful account of the legislative history of secondary EU legislation just as they sometimes give an account of the financial and policy considerations which lie behind the relevant EU act and the context in which this act operates.28


That being said, the Court of Justice is, of course, aware that the EU institutions are not completely neutral parties.29 This is especially true where the case concerns the legality of an act issued by the institutions. Moreover, sometimes the different members of the Council interpret the relevant EU act in divergent ways. Thus, depending on the circumstances, the Court may receive information which an EU institution puts forward in connection with a reference for a preliminary ruling with a certain healthy scepticism.


As for the EFTA Surveillance Authority, the possibility of presenting observations before the Court of Justice is seen as a most useful way of furthering homogeneity between the legal orders of the EU and the EEA. When the case before the Court of Justice raises questions that are specific to the EEA legal order, as a rule the Authority will present observations. It will normally also appear before the Court when a preliminary question raises issues of EU law that are similar to those that have arisen in a case pending before the Authority. Especially where the relevant EFTA State also presents observations in the case the net effect may be that a case that would otherwise have been pleaded before the EFTA Court in reality finds its solution via a judgment by the Court of Justice.


In Lindmann, concerning taxation of lottery gains, the Court of Justice was asked to assess the compatibility of Finnish legislation with what is now Article 56 TFEU. As that provision corresponds to Article 36 of the EEA Agreement and since, for all practical purposes, the Finnish legislation was similar to Norwegian provisions against which the EFTA Surveillance Authority had issued a reasoned opinion, both the Authority and Norway submitted observations to the Court of Justice. When the Court of Justice found the Finnish legislation incompatible with EU law, Norway changed its own legislation before the Authority had occasion to bring the matter before the EFTA Court.30


Moreover, the EFTA Surveillance Authority occasionally submits observations in preliminary cases before the Court of Justice where problems similar to those raised in the case before the Court may arise under the EEA Agreement. Sometimes, the mere fact that a preliminary reference raises a particularly interesting question of EU and EEA law has, in itself, prompted the Authority to submit observations.31


As for the Member States, both the total number of observations and the number of observations relative to the number of preliminary references have increased over the last decade.32 This upward trend is presumably a reflection of the fact that governments have become more aware of the wide-reaching consequences that a preliminary ruling might have for the Member States’ room for manoeuvre. It probably also reflects an increased belief that such observations may influence the decisions of the Court of Justice. In this respect, a Member State can sometimes have an interest in arguing a view before the Court of Justice which it has been unable to persuade the other Member States to accept when the EU provision in question was negotiated in the Council.


The Member States’ observations can be of considerable assistance to the Court of Justice by pointing out the likely practical, financial, or political consequences of a given decision. In particular, where a preliminary reference concerns a Member State’s own legislation, it will often be useful for the Court to receive a detailed account of the relevant national provisions, the considerations that lie behind these provisions, and the practice of the national courts in applying them. Such information not only gives the Court a better basis for solving the specific dispute but may, depending on the circumstances, also improve the possibility of giving a more precise judgment that avoids examining hypothetical issues.33 Similarly, a Member State might help to cast light on the rules pertaining to the referring body where there are doubts as to whether this body constitutes a court within the meaning of Article 267. That being said, as was also the case with respect to observations made by the EU institutions, information provided by a Member State must, of course, be assessed with due regard to the interests which that Member State may have in presenting the facts and national law in a way that best furthers the interests of that State.


The practices of the different Member States as to when to present observations differ significantly both with regard to the number and the type of cases. While some Member States readily present observations in a case, ‘merely’ because it raises an issue of principle, other Member States are more reticent about submitting observations in cases that do not raise questions about the compatibility with EU law of their own national laws or administrative practice. Indeed, even if a preliminary reference concerns the compatibility of a Member State’s national laws or practice, some Member States may leave it to the national administrative authority that is a party to the main proceedings to present the Member State’s views to the Court of Justice.34 Irrespective of these appreciable differences between the various Member States, it is possible to discern a tendency where still more States move away from submitting the bulk of their observations in their own national cases, and instead increasingly pick out the cases according to the subject matter and legal issues raised by the individual case. Perhaps this shift is a reflection of the fact that a preliminary ruling de facto may overrule not only the national legislation which is the subject of the national procedure giving rise to the preliminary reference, but also similar legislation of other Member States. It is therefore only natural that Member States other than the one from which the reference originates also submit observations in such preliminary proceedings. In this respect it appears that some Member States have thematic priorities in their participation strategy. Thus, while virtually all Member States occasionally make observations in cases concerning direct taxation, the Scandinavian Member States tend to be particularly active in environmental matters and in cases concerning the right of access to documents held by the EU institutions. In comparison, several Mediterranean Member States appear to focus on agricultural issues. Moreover, France appears to be especially active regarding services of general interest and the development of general principles of EU law.35


In Placanica, eight governments submitted observations arguing that national monopolies on gaming did not infringe the EU rules on establishment and free movement of services. All of those eight States themselves had some form of gaming monopolies.36 When shortly thereafter the same issue came before the EFTA Court in Ladbrokes, that court received observations from a total of 11 States, in addition to observations from the two parties as well as from the Commission and the EFTA Surveillance Authority.37


In Laval, in addition to observations submitted by the Commission, the EFTA Surveillance Authority and the parties to the main proceedings, 14 Member States, as well as the two EFTA States, Iceland and Norway, presented observations. This was due to the considerable importance in economic, political, and legal terms that the preliminary questions gave rise to with respect to the rights of trade unions to take measures against foreign service providers not willing to enter into collective agreements in the host State.38


Presumably each government first weighs the advantages of presenting observations in such situations—that is to say, to improve the likelihood of receiving a ruling that caters for the government’s views—against the risk of openly exposing a potential problem in its national legal order vis-à-vis EU law.


Where several Member States are going to present similar arguments, the Court encourages the States to coordinate their respective observations, especially with respect to the oral hearing. Indeed, such cooperation may not only save the Court from unnecessary repetition, but perhaps also lead to a fuller presentation of the socio-economic context of the issue at stake.39


3.3. Influencing the Scope of the Preliminary Ruling through the Presentation of Observations


3.3.1. The preliminary ruling procedure does not have any parties stricto sensu

Article 267 introduces a means of direct cooperation between the Court of Justice and the national courts. Formally speaking, this cooperation takes place within the framework of a non-contentious procedure. Thus, although, in reality, there is a distinct adversarial feel to a preliminary proceeding, neither the parties to the main proceedings nor anybody else entitled to present observations in the preliminary procedure have the status of parties before the Court of Justice; they are merely invited to state their view and may thus be likened to amici curiae. For the same reason, they are not entitled to take procedural initiatives of their own as part of the preliminary procedure.40 Similarly, the rights and obligations pertaining to ‘parties’ laid down in the Court’s Statute and its Rules of Procedure are not generally applicable to persons and bodies presenting observations in a preliminary procedure.


3.3.2. The subject matter of the preliminary question

It is solely for the national court to determine the content of the question it puts before the Court of Justice. In connection with the proceedings before the Court of Justice, the parties in the main proceedings can only submit suggestions with regard to the interpretation of the content of the reference and with regard to the answers to the questions referred.41 Hence, those entitled to submit observations during the preliminary procedure before the Court of Justice cannot challenge the relevance of a preliminary question on the grounds that the referring court has decided to initiate the proceedings under Article 267 on the basis of a misunderstanding of the factual or legal problems in the main proceedings.42 Nor can they amend or expand, or for that matter narrow, the content of the question.43


This is in particular the case when the party concerned has argued unsuccessfully before the national court for an expansion of the scope of the questions referred.44 It is strictly applied in relation to the question of which national legal provisions the preliminary ruling should relate to. If the national court has restricted its reference to a legal problem that is derived from a specific rule under national law, not even the most compelling set of observations would persuade the Court of Justice to frame its preliminary ruling so as to have regard for other legal problems that are derived from different national rules. Similarly, the Court of Justice is wary about accepting requests from those entitled to submit observations to change the theme of the question in order to cover problems of EU law which are not contained in the reference.45


In Syndesmos, the referring court essentially wanted guidance on whether the provisions of the Second Company Law Directive precluded increases in the capital of a company where such increases had not been authorized by the annual general meeting of shareholders and no pre-emptive subscription rights had been made available to the existing shareholders. Before the Court of Justice the parties in the main proceedings put forward various arguments about problems that were not covered by the referring court’s preliminary questions. It was, for instance, being debated whether individuals who, before a national court, seek to rely on rights based on a general principle of law must have a legitimate interest in invoking that principle. It was also argued that the EU legislator did not have competence to legislate on matters of insolvency law and other collective procedures for the satisfaction of creditors’ claims. The Court of Justice declined to consider these arguments. According to the allocation of jurisdiction in proceedings for preliminary rulings, it was solely for the national court to determine the subject matter of the question referred. If necessary, the national court could make a fresh reference to the Court of Justice if it considered it necessary to obtain a further ruling on the interpretation of EU law for the purpose of taking a decision in the main proceedings.46


In Felicitas, a German court had asked the Court of Justice to interpret Article 5 of Directive 69/335 concerning indirect taxes on the raising of capital. The plaintiff in the main proceedings argued that it was necessary first to reply to the question underlying the referring court’s preliminary question, namely whether a transaction such as that concerned in the main proceedings constituted a transaction subject to capital duty within the meaning of the directive. The Court of Justice noted that this underlying question would necessitate an interpretation of provisions of the directive other than that referred in the order for reference. Since the underlying question was not covered by the preliminary reference and since the national court had expressed no doubt that a transaction such as that concerned in the case was subject to capital duty, the Court of Justice declined to rule on the underlying question.47


In the same way, neither the parties to the main proceedings nor others entitled to submit observations before the Court of Justice can require the Court to make a more fundamental reformulation of the subject of the preliminary reference.


In Sehrer, a German court had requested the Court of Justice to rule on a question of the compatibility with EU law of a German provision which required that Mr Sehrer pay a health insurance contribution on a supplementary retirement pension paid to him from France. Before the Court of Justice, both the Commission and the German government argued that the real problem was not the lawful German contribution. Rather the problem was that France also required payment of a health insurance contribution. In their view, account should only be taken of the basis for the calculation of the German contribution if the prior collection of the contribution in France was compatible with EU law. Advocate General Colomer agreed in principle that the contribution required under French law was probably contrary to EU law and, moreover, the real source of Mr Sehrer’s problem. However, the referring court had chosen to limit its question to the validity of the German contribution, and it was not for the Court of Justice to refuse to give a ruling on the question, nor could it extend the scope of the question to include a ruling on the French law. The Court of Justice agreed with its Advocate General. It added moreover that the referring court in its order for reference had expressed doubts as to whether the duty under French law to pay sickness insurance contributions conferring no benefit entitlement was compatible with EU law. However, the German court had chosen not to include this issue in its preliminary reference since it could only be tried by the French courts, and because Mr Sehrer himself had preferred to put the validity of the German sickness insurance contributions in issue on the grounds that they were at a higher rate than the French contributions. The Court of Justice therefore found it appropriate only to reply to the question submitted by the national court.48


This reticence to change the subject matter of the questions referred is based on a number of interlinked considerations. First, the Court of Justice cannot give rulings on hypothetical questions.49 Second, the Court of Justice must respect the allocation of jurisdiction made in Article 267 between itself and the national courts, according to which it is for the national courts to decide which issues of EU law they need help to solve. Indeed, the Court of Justice does not take over the case before the national court as a result of the reference; the case remains pending before the national court and the Court of Justice only becomes involved to the extent that the national court finds this desirable. Third, often the Court of Justice will not have the necessary information about the facts or the national law to enable it to foresee the consequences of expanding a question referred.50 Finally, changing the preliminary questions would hardly be compatible with the rights of those persons and bodies covered by Article 23 of the Court’s Statute, to be able to submit observations before the Court, given that, in accordance with that provision, it is only the decision to make a reference that is notified to them.51


3.3.3. Supplementing or departing from the facts of the reference

3.3.3.1. The main rule

Under Article 267, the Court of Justice does not have the authority to decide the facts in the main proceedings with binding effect for the national court.52 For this reason, the Court of Justice will, as a point of departure, base itself upon the referring court’s presentation of the facts in the main proceedings when answering the latter’s preliminary questions.53 Even when a party to the main proceedings convincingly argues before the Court that the facts are other than those described in the order for reference, the Court normally sticks to the account of the facts given in the reference.


In Phytheron International, the referring court had given a very short description of the facts in the main proceedings about a dispute on the exhaustion of trade-mark rights relating to certain goods. During the proceedings before the Court of Justice it was stated that the goods were not manufactured in Turkey, as was otherwise stated in the order for reference, but instead in Germany. Notwithstanding this, the Court of Justice chose to answer the preliminary questions only on the basis of the facts as they appeared from the order for reference. Indeed, to base its ruling on the facts mentioned in the course of proceedings before it would have entailed that the very substance of the problem raised by the questions referred would be changed. It would also mean that the Court would have had to address a question of principle on which it had not yet had occasion to decide, on the basis of facts which required clarification to enable a proper answer to be given. Also the fact that the owner of the trademark was not a party to the main proceedings, and therefore could not present his arguments before the Court of Justice, meant that the Court could not disregard the presentation of the facts contained in the order for reference. Finally, to alter the substance of questions referred for a preliminary ruling would be incompatible with the Court’s function under Article 267 and with its duty to ensure that those entitled to submit observations under Article 23 of the Statute can exercise that right effectively.54


In Dumon and Fromont, a French court asked the Court of Justice to rule on the legal effect of the fact that France had disregarded an obligation to inform the Commission in connection with the implementation of a directive. Both the Commission and the French government disputed the relevance of the question, arguing that France had in fact informed the Commission. They therefore suggested that rather than answering the question as it was put, the Court of Justice should hold that the obligation to provide information imposed by the directive had in fact been complied with. The Court replied that changing the reference for a preliminary ruling would not be compatible with its tasks under Article 267. Rather, it was up to the referring court to assess whether this new information, presented in the course of the proceedings before the Court of Justice, was useful, or indeed necessary, in resolving the dispute in the main proceedings. The Court of Justice thereafter gave its ruling and held that the directive did not prevent the application of a provision such as that introduced into French law, even if the Commission had not been notified.55


The following sections analyse the types of case where the Court of Justice nevertheless departs from this main principle and thus takes account of supplementary information presented to it during the preliminary procedure or even bases itself on an understanding of the facts or of national law that differs from that stated in the order for reference.


3.3.3.2. Supplementing the referring court’s description of the facts

Originally, the axiom behind Article 267 was that EU law could be interpreted in abstracto, and that it was therefore possible to establish a clear division of jurisdiction, where the Court of Justice first gives an abstract ruling on the law, upon which the national court applies this interpretation to the facts of the main proceedings.56 The Court of Justice was thus regarded as a kind of legal data bank that operated in a fact-free environment. However, it soon became clear that it was seldom possible to maintain such a division of competences in practice.57


The Court’s Rules of Procedure allow it to admit evidence during a preliminary procedure. Hence, both a party to the main proceedings and any other body entitled to submit observations to the Court of Justice may introduce facts not mentioned in the reference. This applies regardless of whether or not the information has been put before the referring court. Indeed, in its ‘Notes for the Guidance of Counsel’ the Court explicitly invites those presenting observations in preliminary proceedings to bring to its attention the factual circumstances of the case before the referring court and the relevant provisions of the national legislation at issue.58


Moreover, so as to enable the Court to better understand the questions referred to it, the Court not only values, but sometimes even calls for, evidence to complete or explain the background of the facts as stated in the preliminary reference. Especially where the referring court has framed its questions in general terms, the Court of Justice will be inclined to examine them in the light of the observations of the parties to the main proceedings.59 Thereby, the Court will be able to design its answer to the facts in the main proceedings and the relevant national law. In the same way, where the referring court has asked a question on the validity of an EU rule, but has not given any details on the possible grounds for the alleged invalidity in the order for reference, the Court of Justice will take as its point of departure the arguments for invalidity which have been made by the parties to the main proceedings.60


This practice deviates from the Court’s previous case law as laid down in Bosch in which the Court stated that it could not take account of different, apparently uncontested, pieces of factual information which had been put forward in the course of the proceedings. The Court thereby referred to the then categorically enforced principle that in a preliminary ruling the establishment of the facts of the case fell within the exclusive jurisdiction of the national courts, and that the Court of Justice could only interpret EU law in abstracto, and not even indirectly apply the law to the facts.61


Normally, the Court of Justice is particularly open to including contextual information that can clarify the general background to a problem before it, as long as this new information does not cast doubt on the facts that are given in the order for reference in relation to the actual dispute. This applies in particular to information which can have greater relevance for the abstract interpretation of the legal rule in question rather than the specific application of the rule in the actual case.62


3.3.3.3 The facts presented in the reference are being disputed

3.3.3.3.1. The degree of fact-finding performed by the referring court

As stated in the preceding sections, the Court of Justice is relatively open to supplementing the facts of the case, as laid out in the reference from the national court, as long as the supplementary facts complement rather than change the presentation given in the reference. In contrast, the Court is more reticent about accepting information that casts doubt on the referring court’s understanding of the facts in the main proceedings, or even contradicts the order for reference. This is particularly the case where the issues in question have been subject to a presentation of evidence in the proceedings before the national court.


In comparison, in relation to factual information about which the referring court has not taken special measures to obtain evidence, the Court of Justice has occasionally, although not often, chosen to frame its ruling on the basis of a different understanding of the facts than the one expressed in the preliminary reference if the conflicting evidence presented to the Court seems to be indisputable.


In Mesbah, the preliminary question was based on an understanding of the facts according to which the respondent in the main proceedings had acquired Belgian citizenship ‘apparently in the mid 1970s’. During the proceedings before the Court of Justice, the respondent and the Belgian government both argued that the respondent had only become a Belgian citizen in 1985. They both also claimed that in 1998 the respondent had also had Moroccan citizenship. In support of their statements, the respondent and the Belgian government presented a certified extract from the national Belgian register and a certificate issued by the Consulate General of Morocco in Brussels. This information could not merely be regarded as a supplementary fact, since it essentially contradicted the information given in the order for reference. However, the Court of Justice reformulated the question so as to accord with the facts of the case as they had been corrected by the observations.63


3.3.3.3.2. Undisputed facts that arise after the reference is made

Where the parties to the main proceedings agree about factual circumstances that have arisen after the reference for a preliminary ruling has been made, the Court of Justice has generally been willing to reformulate the preliminary question so as to take into account the agreed view of the parties about the actual problem in the case as it stands at that time. In these situations, the Court of Justice will normally not consult the referring court before reformulating the issue to be answered.64


In Nijhuis, a Dutch court referred two questions concerning a right to an invalidity pension under Regulation 1408/71. During the proceedings before the Court of Justice, both parties to the main proceedings and the Commission were in agreement that, after the reference for a preliminary ruling had been made, another EU regulation had entered into force clearly giving the plaintiff a right to the disputed payment. On this basis the Court of Justice limited its preliminary ruling to dealing with the period before the second regulation entered into force.65


After receiving the response to the preliminary question, it is up to the referring court to verify the Court of Justice’s assessment of the evidence and thereby also the relevance of the preliminary ruling for the resolution of the dispute in the main proceedings. Indeed, as already mentioned, the Court of Justice cannot determine the facts of the case in the main proceedings with binding effect for the national court.66 Where the Court of Justice departs from the understanding as presented in the reference, the preliminary ruling will only be binding for the referring court in so far as it concurs with the understanding of the facts of the case on which the preliminary ruling is based.67 For that reason too, the Court of Justice tends only to base its preliminary ruling on facts deviating from those presented in the reference when it believes that in its final judgment the referring court will confirm the correctness of the understanding of the facts on which the preliminary ruling is based.


3.3.3.3.3. A party corrects information on the facts against his own interest

Occasionally, the Court of Justice has also deviated from the referring court’s presentation of the facts where, in a way that weakens his own case, a party to the main proceedings himself corrects a fact mentioned in the preliminary reference. In proceedings for preliminary rulings, the Court of Justice is not bound by the admissions of the parties since one of the main purposes of the procedure is to clarify a question of general interest applicable to all.68 However, if on the basis of the information presented to the Court of Justice, it is both undisputed and apparent that the referring court, without having looked into the matter in any great detail, has overlooked some important factual information, the Court of Justice has at times been willing to reformulate the preliminary question so that it is cohesive with its own understanding of the facts, and thereby to provide the referring court with an answer that is useful for the resolution of the dispute in the main proceedings.


In Tabouillot

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