What Questions Can Be Referred?

4

WHAT QUESTIONS CAN BE REFERRED?


1. Introduction


Not every question from a body that fulfils the conditions for being categorized as a court or tribunal of a Member State in accordance with Article 267 TFEU can be accepted for a preliminary ruling. The categories of questions that can be referred for a preliminary ruling are listed in Article 267(1)(a)–(b). According to these provisions the Court of Justice has jurisdiction to give preliminary rulings on the interpretation of the Treaties, and on the validity and interpretation of acts of the institutions, bodies, offices, or agencies of the Union. On the other hand, it does not have jurisdiction to rule on the interpretation or validity of international law or national laws. Likewise, the Court of Justice is prevented from giving a binding ruling on the facts that are put before a national court.


In this chapter, section 2 looks at what the reference to ‘the Treaties’ in Article 267(1)(a) means. Next, in section 3 the meaning of ‘acts’, ‘institutions, bodies, offices or agencies’, and ‘validity’ is established. Finally, in section 4 there is a review of the extent to which the Court of Justice can give its opinion on the facts or the content of national law in connection with a reference for a preliminary ruling.


2. Article 267(1)(a) on ‘the Interpretation of the Treaties’


2.1. Questions on Validity of the Treaties


According to Article 267(1)(a), any question on the interpretation of the Treaties can be referred to the Court of Justice for a preliminary ruling. Hence, it seems natural to conclude, a contrario, that the Court of Justice does not have jurisdiction to answer questions on the validity of the Treaties themselves. Nevertheless, following the entry into force of the Lisbon Treaty in 2009 a so-called simplified revision procedure has been introduced in Article 48(6) TEU whereby the European Council may amend all or part of the provisions of Part Three of the Treaty on the Functioning of the European Union through the adoption of a decision to this effect. The validity of such a decision, based on this procedure, to introduce a new Treaty-level provision may be subject to review by the Court of Justice. Thus, in an answer to a preliminary reference from the Irish Supreme Court on this matter, the Court of Justice has held that it is necessary that compliance with the procedural conditions laid down in Article 48(6) TEU are monitored in order to establish whether the simplified revision procedure is applicable, and it therefore falls to the Court to examine the validity of a decision of the European Council based on that provision.1


Whilst it follows from Article 267(1)(a) that the Court of Justice does not have jurisdiction to examine the validity of primary law2 it cannot fully be excluded that in truly exceptional circumstances the Court of Justice would set aside a Treaty provision as being invalid, for example because the provision in question is clearly contrary to the fundamental principles of EU law, or has been included by an amendment to the Treaties which has been carried out in a manner that is indisputably contrary to the Treaties. Whether it is conceivable that the Court of Justice would do this in practice is, however, an open question. Indeed, not only does the wording of Article 267 militate against such a step, but since the Treaties form the constitution of the Union, the natural starting point also is that they cannot be challenged within the framework of the European Union’s legal order, as the legal order derives its legitimacy from that constitutional basis.3


The Court of Justice has not yet had a reference of a question requiring it to consider the validity of a Treaty provision in this type of situation. However, the EFTA Court, which to a considerable extent has been modelled on the Court of Justice, has had to consider a similar question in CIBA.


In CIBA, the Oslo City Court referred a question to the EFTA Court as to whether the EEA Joint Committee had the necessary authority to adopt a Joint Statement. The Norwegian State, which was the defendant in the main proceedings, argued that the reference for a preliminary ruling meant that the EFTA Court had to decide on the validity of a decision taken by the EEA Joint Committee. In the opinion of the Norwegian State the EFTA Court did not have the authority to make such an advisory opinion so that the case should be dismissed as inadmissible. The EFTA Court acknowledged that, in contrast to the Court of Justice, it did not have jurisdiction to decide on the validity of acts issued by EEA bodies. It nevertheless chose to consider the question, and, in so doing, made a fine distinction between, on the one hand, questions of the validity of the disputed legal act and, on the other hand, questions of the interpretation of the higher legal principles which determined whether the Joint Statement (ie the legal act) could be regarded as valid. By using this approach the EFTA Court was able to express a view on the question of validity without directly passing judgment on it.4


Were the Court of Justice to have a question referred to it on the validity of a Treaty provision, it is natural to assume that it would adopt the same approach as the EFTA Court took in CIBA.


2.2. What Is Covered by ‘the Treaties’?


2.2.1. The main rule

Article 267 as a main rule applies to all EU law measures falling within the scope of the Treaty on European Union and the Treaty on the Functioning of the European Union. Hence, the words ‘the Treaties’ include not only the Treaty on European Union and the Treaty on the Functioning of the European Union5 in their original forms, but also any subsequent amendments that may be made to them, as well as the various accession treaties.6 The term also covers the annexes and protocols to the Treaties, as these documents are an integral part of the legal acts which have created the European Union.7 Likewise, the Charter on Fundamental Rights of the European Union is also covered so that national courts may make preliminary references on the interpretation thereof.8 Conversely, the term is unlikely to include those non-binding unilateral declarations which the Member States may have associated with the Treaties.


The Court of Justice also has jurisdiction to give preliminary rulings on the interpretation of the Merger Treaty and in relation to the protocols of the Merger Treaty.9


Nevertheless, there are certain limited exceptions to the above main rule. First, under Article 7 TEU, the Council, after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2 TEU, namely respect for human dignity, freedom, democracy, equality, the rule of law, and respect for human rights, including the rights of persons belonging to minorities. While the legality of legal acts of the Council has previously been entirely outside the jurisdiction of the Court of Justice, the Lisbon Treaty through the introduction of Article 269 TFEU changed this. Arguably it follows, a contrario, from this provision that the Court of Justice does not have jurisdiction to examine whether the substantive conditions for the application of Article 7 TEU have been fulfilled. Another consequence of the formulation of the provision is that it does not seem to be possible to make references for preliminary rulings under Article 267 on the application of Article 7 TEU.


Second, some exceptions have so-to-say been carried over from the Treaty structure pre-Lisbon. Thus, prior to the entry into force of the Treaty of Lisbon, the European Union was based upon a so-called three-pillar structure where the access to make preliminary references varied considerably between the different pillars. The Treaty of Lisbon abandoned the pillar structure. Hence, today, as a matter of principle, all areas of EU law may be subject to preliminary references. Special rules, however, continue to apply with regard to the area of Police and Judicial Cooperation and the area of Common Foreign and Security Policy. We now therefore consider the applicability of the preliminary reference procedure to these two areas (sections 2.2.2 and 2.2.3 respectively). Moreover, we briefly consider preliminary references under the Euratom Treaty and the ECSC Treaty (section 2.2.4).


2.2.2. Police and judicial cooperation

With the Lisbon Treaty the special procedures for preliminary references in the field of Police and Judicial Cooperation, which pre-Lisbon were provided for in Articles 35 of the then EU Treaty and 68 of the then EC Treaty, were abandoned. This means that acts which are adopted post-Lisbon within the field of Police and Judicial Cooperation now come within the ordinary preliminary reference procedure in Article 267 TFEU. The two principal changes to the preliminary reference arrangement which have been brought about by the Treaty of Lisbon’s extension of full jurisdiction to all areas of Police and Judicial Cooperation therefore are as follows:



1. Whereas pre-Lisbon Article 68 of the then applicable EC Treaty laid down that only courts of last instance could make references regarding questions relating to asylum, immigration, and civil law matters, today under Article 267 TFEU preliminary references have become possible from all national courts and tribunals regarding these matters. Indeed, even where a reference on these matters has been made prior to the entry into force of the Lisbon Treaty in contravention of Article 68(1) of the EC Treaty, the Court of Justice has considered itself competent to consider the reference after the entry into force of the Lisbon Treaty.10


2. Prior to the entry into force of the Lisbon Treaty Article 35 of the then applicable EU Treaty laid down that only courts whose Member State had made a declaration accepting the Court of Justice’s jurisdiction could make references to the Court of Justice in the area of criminal law and policing.11 In contrast, today under Article 267 such references can be made by any national court or tribunal with the exception of courts or tribunals of Member States that have opted out of this area of the law.


It follows that the entry into force of the Treaty of Lisbon has had a substantive impact on the possibility of making preliminary references in the field of Police and Judicial Cooperation. Nevertheless, this does not mean that the limitations on preliminary references which previously applied vis-à-vis legal acts in the field of Police and Judicial Cooperation have completely ceased to apply as of the date of the entry into force of the Treaty of Lisbon. On the contrary, the Treaty of Lisbon’s Protocol No 36 on Transitional Provisions12 in Article 10(1) lays down that the powers of the Court of Justice under Title VI of the pre-Lisbon Treaty on European Union shall remain the same.13 Protocol No 36, which in itself is an exception to the new scheme, however also lays down two exceptions:


1. Where a pre-Lisbon act in the field of Police and Judicial Cooperation is amended, the Court of Justice shall have jurisdiction vis-à-vis this act in accordance with the post-Lisbon provisions.14


2. In any case, the transitional measure laid down in Article 10(1) of Protocol 36 shall cease to have effect five years after the date of entry into force of the Treaty of Lisbon, namely by 1 December 2014.15 This essentially means that from this time onwards legal acts in the field of Police and Judicial Cooperation will come within the ordinary preliminary reference procedure in Article 267 irrespective of when they were adopted and irrespective of whether they have been subject to amendment.


Moreover, Article 276 TFEU provides that the Court of Justice of the European Union shall have no jurisdiction to review the validity or proportionality of operations carried out by the police or other law-enforcement services of a Member State or the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.16


2.2.3. Common foreign and security policy

Whereas the Court of Justice’s jurisdiction has been considerably increased in the field of Police and Judicial Cooperation, the same is not the case with regard to the Common Foreign and Security Policy (CFSP). Thus, Article 275 TFEU provides as follows:



In other words, the Court of Justice does not have jurisdiction to answer preliminary references regarding the CFSP—with only some fairly narrow exceptions regarding compliance with certain procedural rules and with the extent of the powers of the institutions.17


However, the Court of Justice does have jurisdiction to ensure that implementation of the CFSP does not encroach on the European Union’s powers in other areas, and that the implementation of Union powers in other areas do not encroach on the CFSP.18 It follows that if a national court makes a preliminary reference in order to clarify whether a CFSP act encroaches upon other areas of EU powers,19 it is likely that in accordance with Articles 24(1)(2) and 40 TEU, the Court of Justice will consider itself to be competent to rule on the matter.20 For example, this situation could arise in connection with a claim for damages allegedly flowing from the adoption of CFSP acts, and where in this regard there is a question whether the Council has encroached on non-CFSP competence.21


Likewise, non-CFSP legal measures may contain direct or indirect references to CFSP provisions so that for the Court of Justice to interpret the non-CFSP measure it must, in reality, interpret the CFSP provision.22 Moreover, it seems arguable that the Court of Justice may admit a preliminary reference on access to documents under Article 15 TFEU, even if some or all the documents concern the CFSP.23


In direct actions Article 275(2) TFEU vests in the Court of Justice competence to review the legality ‘of decisions providing for restrictive measures against natural or legal persons adopted by the Council on the basis of Chapter 2 of Title V of the Treaty on European Union’. Whereas the provision in Article 275(2) TFEU expressly allows the review of the legality of such measures in the form of annulment proceedings, it does not refer to the possibility that such measures could also be challenged via a reference for a preliminary ruling, and thus it appears doubtful whether this is possible.24 This may be contrasted with the Court’s approach prior to the entry into force of the Lisbon Treaty where it ruled that ‘[t]he right to make a reference to the Court for a preliminary ruling must … exist in respect of all measures adopted by the Council, whatever their nature or form, which are intended to have legal effects in relation to third parties’25 The former of the two approaches arguably vests in the Court a more narrow competence—which does not appear to be well in line with the guiding principles underlying the Treaty of Lisbon. Hence, it remains to be seen how the Court of Justice will construe Article 275 TFEU in this respect.26


2.2.4. Euratom Treaty and ECSC Treaty

Following the entry into force of the Treaty of Lisbon, Article 267 TFEU equally applies to the Euratom Treaty.27 The number of preliminary references concerning the Euratom Treaty has been extremely limited however.


The ECSC Treaty expired on 23 July 2002. Nevertheless, the Court of Justice has ruled that it retains jurisdiction to deliver preliminary rulings on questions referred to it concerning the interpretation and application of that Treaty and on measures adopted under it, even if those questions are referred to it after the expiry of the ECSC Treaty.28 It is not fully clear from the Court’s ruling precisely how it bases this jurisdiction.


3. Article 267(1)(b) on ‘the Validity and Interpretation of Acts of the Institutions, Bodies, Offices or Agencies of the Union’


According to Article 267(1)(b), all questions concerning the validity and interpretation of acts of the institutions, bodies, offices, or agencies of the Union can be referred.


3.1. The Meaning of ‘the Institutions, Bodies, Offices or Agencies of the Union’


Prior to the entry into force of the Lisbon Treaty (then) Article 234(1)(b) and (c) of the EC Treaty provided that the Court of Justice should have jurisdiction to give preliminary rulings concerning ‘the validity and interpretation of acts of the institutions of the Community and of the ECB’ as well as ‘the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide’. This formulation was changed with the Lisbon Treaty so that today the Court of Justice is competent to answer questions on ‘the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union’. Whereas ‘institutions’ are exhaustively listed in Article 15 TEU the Treaties provide no definition of ‘bodies, offices or agencies’ and there does not seem to be a formally adopted definition thereof.29 Arguably, the terms are intended to cover practically all EU legal measures regardless of the actual entity adopting the specific measure so as to ensure effective judicial protection of an individual’s rights under EU law. This finds support in Article 47 of the European Union’s Charter on Fundamental Rights laying down the principle of effective judicial review.30


The terms mean, for example, that the legal acts of Eurojust and Europol are covered by Article 267.31 If the Council decides to establish a European Public Prosecutor’s Office in accordance with Article 86 TFEU, this body’s legal acts may also be subject to annulment proceedings.32 New measures adopted by the European Council, which has now become a Union institution, pursuant to Article 13(1) TEU, are also now clearly subject to the jurisdiction of the Court.33


It remains unclear whether legal acts adopted by the Member States’ representatives in the Council are covered by Article 267. Regardless of whether these legal acts are adopted within the institutional framework of the Council, they are not adopted by the Council as a Union institution, but by the Member States’ representatives outside EU law. It therefore seems most natural to regard such legal acts as not being ‘acts of the institutions, bodies, offices or agencies of the Union’ within the meaning of Article 267.


Where a legal act of the Union allows one or more Member States to enter into agreements or otherwise issue legal acts, these will not be regarded as having been issued by the ‘institutions, bodies, offices or agencies of the Union’. The Court of Justice thus does not have jurisdiction to interpret such acts in connection with a reference for a preliminary ruling.34 On the other hand, the Court of Justice will have jurisdiction if the referring national court requests an interpretation of an EU act with a view to itself applying the Court of Justice’s interpretation of the EU act to interpret an agreement entered into between Member States.35


3.2. The Meaning of ‘Acts’


3.2.1. Acts adopted on the basis of the Treaties

Article 263 TFEU on the legality of acts, defines the EU acts which the Court of Justice can review in direct proceedings. There are no corresponding limitations to the jurisdiction of the Court of Justice under Article 267.36 Indeed, any such limitation would be contrary to the purpose of the preliminary ruling procedure, which is to ensure that EU law is applied and interpreted uniformly in all Member States and in accordance with the Treaties. This means that the Court of Justice not only has jurisdiction to give rulings on regulations, directives, and decisions, it also has jurisdiction to give rulings on non-binding acts, including Council resolutions, as well as recommendations, statements, and notices adopted on the basis of the Treaties.37


In Grimaldi the Court of Justice was asked to interpret some recommendations which, according to what is now Article 288 TFEU, are not binding. The Court considered itself competent to deal with the reference for a preliminary ruling as Article 267 gives it jurisdiction to give preliminary rulings on the validity and interpretation of all acts of the institutions of the European Union, without exception.38


The Court’s own Statute and its Rules of Procedure can also be subject to a review of their interpretation and validity through a preliminary ruling.39 Similarly, legal acts which are sui generis and not referred to in Article 288 TFEU—for example Council resolutions which are intended to have binding effect—are covered by the term ‘acts’ in Article 267.40 The same applies to individual decisions which are addressed to natural or legal persons.


Where an act has been adopted within the field of police and judicial cooperation a preliminary reference depends upon whether the pre-Lisbon scheme or the post-Lisbon applies to the act in question.41


3.2.2. EU acts which refer to non-EU acts

The Court of Justice is not competent to give rulings on acts of the Member States. If, however, an EU act makes reference to certain non-EU acts (including acts that are to be adopted by the Member States) the Court is competent to interpret the EU act including the EU act’s reference to the non-EU acts.


In ZF Zefeser, the Court of Justice was asked to rule on the concept of ‘an act that could give rise to criminal court proceedings’ contained in an EU regulation. The Advocate General pointed out that the concept was closely connected with the substance or procedure of criminal law and so it could be argued that it fell within the interpretative authority of national courts and outside the competence of the Court of Justice. In its judgment the Court did not enter this discussion, but simply provided an interpretation of the concept.42


On the other hand, the Court of Justice does not have jurisdiction under Article 267 to interpret agreements under private law which are entered into without the involvement of an EU institution or other organ. This applies regardless of whether a secondary EU legal act refers to the agreement, and regardless of whether the entry into the agreement under private law is made a condition for the entry into force of a secondary EU legal act. It is likewise irrelevant whether the period of validity of this secondary EU legal act is conditional on the period of validity of an agreement under private law.


In Demouche, a question was referred to the Court of Justice on the interpretation of a standard agreement, and a supplementary agreement associated with it, which had been entered into between a number of insurance bureaux. The standard agreement in private law introduced a cooperative arrangement for the payment of compensation in connection with car accidents which occurred while driving abroad. The arrangement had since been supplemented by a Council directive on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles. This directive provided that its entry into force depended on the making of a supplementary agreement under private law to the standard agreement. Moreover, the period of validity of this supplementary agreement determined the period of validity of the directive. In other words, the purpose of the directive could not have been achieved without the agreement being made under private law. Nevertheless, the Court of Justice found that it did not have jurisdiction to interpret the agreement, since no EU institution or agency took part in its making. The fact that the conclusion of the agreement was a precondition for the entry into force and that the length of the directive’s applicability was determined by the agreement’s duration did not affect the nature of the supplementary agreement as a measure adopted by private associations.43


It follows that the Court of Justice does not have jurisdiction to rule on the interpretation or validity of an agreement ‘concluded at EU level’ between management and labour in accordance with Article 155 TFEU, so long as this agreement has not been implemented by an EU act.


In Polier, a French court asked the Court of Justice to rule on the validity and interpretation of a specific French ‘ordonnance’ concerning work contracts. The Court declined to give such ruling, observing inter alia that even though under what is now Article 151 TFEU the EU legislator was competent to adopt legislation in the field in question, an ‘act’ would only come within the scope of EU law if it were adopted on the basis of Articles 151 and 153 TFEU.44


The Court’s ruling in Polier may be constrasted with its subsequent ruling in Chatzi. Here the Court held that it had jurisdiction, in making a preliminary ruling, to interpret a framework agreement concerning parental leave that had been entered into on 14 December 1995, and which is in an annex to Council Directive 96/34/EC. The framework agreement was a result of a dialogue at EU level between the social partners (management and labour) on the basis of the agreement on social and labour market policy. In accordance with Article 4(2) of this agreement a directive was issued by the Council, so that the agreement became an integrated part of the directive. Therefore the directive and the agreement could be subject of a preliminary ruling.45


It appears to follow from the order in Polier, as well as the judgment in Chatzi, that an agreement may form the basis of a reference if it is implemented by ‘a Council Decision’ in accordance with Article 155(2) TFEU. In practice these agreements are implemented by the adoption of a Council directive to which the agreement is annexed.46


3.2.3. The act must have been adopted, but not necessarily have entered into force

An ‘act’ requires that an act has been adopted. This means that the Court of Justice does not have jurisdiction to answer if a national court asks it to rule that an institution has failed to act.47 Moreover, the content of the act should be sufficiently established for the Court of Justice to have a basis for ruling on its validity or interpretation.


In Mattheus, the Court of Justice was asked to rule on whether EU law was a hindrance to the accession of Spain, Portugal, and Greece to the European Communities in the foreseeable future. The Court of Justice found that it could not give such a preliminary ruling because the legal conditions for such accession had to have been defined in the context of the procedure for the admission of new Member States. It was not possible for the Court of Justice to determine the content of the conditions of accession in advance.48


There is no requirement that the adopted act has also entered into force.49 The fact that an act has been annulled does not in itself mean that the Court of Justice is prevented from interpreting it, if the interpretation can be relevant for the decision of the main proceedings.50


In Pfennigmann, the Court of Justice was asked to interpret a provision in a directive which it had previously annulled for infringement of significant procedural requirements. However the Court had maintained the legal effect of the directive until new provisions were adopted in the area. The Court could interpret the annulled directive’s provisions.51


3.2.4. The act does not have direct effect

The Court of Justice’s jurisdiction to make preliminary rulings does not depend on whether the disputed legal act has direct effect.


In Mazzalai, an Italian court referred a question on the correct interpretation of a directive. In the pleadings the Italian government argued that the Court of Justice could not give a ruling on the question because the EU rule was not directly applicable and therefore did not have direct effect. The Court of Justice rejected this objection and stated that, under Article 267, it has jurisdiction to give preliminary rulings on the interpretation of legal acts adopted by the institutions of the European Union, regardless of whether they are directly applicable.52


3.2.5. The act has previously been the subject of a preliminary ruling

The Court of Justice can also interpret an EU law provision, even if it has previously been the subject of a preliminary ruling. Here it might appear that the Court is interpreting—or distinguishing—the earlier preliminary ruling.53 However, the Court cannot examine the validity of a previous preliminary ruling.


In Wünsche, a German court asked the Court of Justice to rule on the validity of a preliminary ruling. The background to the case was that the national court had previously referred a question to the Court of Justice for a preliminary ruling on the validity of a regulation. In the earlier case the Court of Justice had stated that the regulation in question was valid. After having received the preliminary ruling the national court asked the plaintiff in the main proceedings to submit a statement on the ruling. The plaintiff contended that the Court of Justice’s ruling was vitiated by serious breaches of law and that those breaches deprived it of all binding force. The national court then requested the Court of Justice to consider whether the first preliminary ruling should be considered invalid. The Court of Justice stated that the authority of a preliminary ruling does not preclude the national court from making a further reference to the Court of Justice if it encounters difficulties in understanding or applying the ruling, as long as it refers a fresh question of law to the Court of Justice, or submits new considerations. However, it is not permissible to contest the validity of a judgment delivered previously, as this would call into question the allocation of jurisdiction between national courts and the Court of Justice under Article 267.54


3.3. The Distinction between ‘Acts of the Institutions, Bodies, Offices or Agencies of the Union’ and Agreements under International Law outside the Jurisdiction of the Court of Justice


3.3.1. Overview

It is not only the classic acts of EU institutions referred to herein that are covered by the Court of Justice’s jurisdiction under Article 267. There are also a number of international agreements that constitute acts of the institutions of the European Union which fall within the jurisdiction of the Court of Justice to interpret or rule on their validity. What is decisive for the Court’s jurisdiction is the nature of the disputed act, and not the categories of parties involved.


In the next section we first examine the Court’s competence regarding agreements between the European Union and third countries (section 3.3.2). Next we analyse the Court’s jurisdiction vis-à-vis so-called mixed agreements, namely international agreements which both the European Union and the Member States have competence to enter into, and where the European Union and the Member States have decided ‘internally’ to exercise this competence together (section 3.3.3). We then turn to consider acts of organs set up by an international agreement to which the European Union is party (section 3.3.4) followed by an examination of the Court’s competence with regard to international agreements to which the European Union is not party, but which are an integral part of EU law (section 3.3.5). We also look at the extent to which the Court is competent to answer preliminary references concerning international law that does not qualify as EU law, but that may affect the validity of EU law (section 3.3.6). In the following section we consider the Court’s jurisdiction with respect to questions on international agreements to which the European Union is not a party (section 3.3.7). Finally, we briefly look at other international agreements which give the Court of Justice jurisdiction to interpret (section 3.3.8).


3.3.2. Agreements between the European Union and third countries

Agreements between the European Union and third countries constitute part of the Union’s legal foundation. The requirement for uniform interpretation and application of EU law therefore also exists in this context. On this basis the Court of Justice has established that such agreements must be regarded as acts of the institutions of the European Union in accordance with Article 267(1)(b), and the Court can therefore give preliminary rulings on the interpretation of such agreements.55


In Haegeman, the Court of Justice was asked to interpret some of the provisions in the Agreement of Association with Greece, before Greece joined the European Union. The Court found that the Association Agreement had been entered into by the Council in accordance with the provisions of the EEC Treaty which are now found in Articles 217 and 218 TFEU. There was therefore an act of an EU institution within the meaning of Article 267(1)(b). Furthermore, from the date of entry into force of the Agreement, its terms were an integral part of EU law. The Court therefore had jurisdiction to give preliminary rulings on the interpretation of the Agreement.56


In Kupferberg, a German court referred a question concerning the correct interpretation of a free trade agreement between the European Union and Portugal, before Portugal became a Member State. The Court of Justice stated that the obligations which flowed from such an agreement bound the Member States not only in relation to the third country concerned, but also in relation to the European Union, which had taken on responsibility for the correct implementation of the agreement. It also stated that, due to the EU law character of the provisions in question, they must be given uniform effect throughout the Union. It was therefore within the Court’s jurisdiction to interpret the provisions.57


Correspondingly, in connection with a preliminary ruling, the Court of Justice must be able to declare invalid an EU legal act whereby such an agreement with a third country is entered into, for example because the European Union lacks the competence to enter into the agreement. In such a case the agreement will not be applicable in the European Union.58


The Court of Justice’s jurisdiction to interpret a provision in an international agreement does not depend on whether the provision has direct effect. Where this is not the case the Court often examines whether the provision could be relevant to the decision in the main proceedings. If not, a preliminary ruling will normally be superfluous to the referring national court’s decision in the main proceedings, and on this basis the Court of Justice may refuse to make a substantive ruling on the question referred.59 On the other hand, if a ruling is relevant for deciding the dispute in the main proceedings, the Court of Justice will give a ruling, even if the provision does not have direct effect.60


3.3.3. Mixed agreements

3.3.3.1. Overview—the four situations

A mixed agreement is an international agreement which both the European Union and the Member States have competence to enter into, and where the Union and the Member States have decided ‘internally’ to exercise this competence together. Mixed agreements thus stand in contrast to agreements which fall entirely outside the competence of the European Union, and agreements which are entirely within the exclusive competence of the Union.


With the entry into force of the Lisbon Treaty, Articles 3 and 4 TFEU lay down in what areas the Union has exclusive competence and in what areas the Union and the Member States have shared competence. With particular regard to international agreements, Article 3(2) TFEU provides:



The Union shall … have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or in so far as its conclusion may affect common rules or alter their scope.


In a number of cases questions have been referred to the Court of Justice for preliminary rulings on the interpretation of provisions in mixed agreements. The practice which has arisen in connection with this is far from clear and it does not appear to be coherent.61

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