In Chapters 4–5 we assessed what kinds of questions a national court may refer to the Court of Justice and in what situations such references may take place. Chapter 6 then identified the situations where this competence to pose preliminary questions is not only an option for the national court but an obligation under EU law because, for example, the national court contemplates setting aside a legal act taken by an EU institution or because there is no right of appeal against its decision and the conditions for acte clair are not fulfilled. In this chapter, it is assumed that the national court, on the one hand, is faced with a question of EU law that it may refer for a preliminary ruling according to the criteria described in Chapters 4–5, but, on the other hand, is not bound to do so according to the criteria identified in Chapter 6. In other words, Chapter 7 concerns the situation where the national court has discretion in its decision as to whether or not it should refer a preliminary question to the Court of Justice, and the purpose of the chapter is to analyse (1) the different criteria that form the basis for the national court’s discretionary decision and (2) to what extent EU law interferes with that discretion. In addition, the chapter considers (3) at what time in the proceedings it is best to make a preliminary reference.
The chapter begins by identifying, in sections 2.1–2.4, the different criteria that in general form the basis for the national court’s decision as to whether or not it should make use of the preliminary reference procedure. Section 2.5 then deals with the particular situation where a similar question is already pending before the Court of Justice or where the national court has a cluster of parallel cases before it and must decide whether to make a preliminary reference in all cases or only in one or a few test cases. In section 3, we discuss to what extent a national court not sitting as a court of last instance should refrain from posing a preliminary question because such a question could also be posed during a possible appeal procedure. Finally, section 4 examines at what stage of the proceedings it is most appropriate to refer a preliminary question and, inter alia, discusses to what extent points of fact and national law ought to be clarified before it is decided whether to make use of the preliminary procedure.
The Court of Justice has refrained from laying down rules for when a preliminary question should be referred by courts not covered by Article 267(3) and has held that it is up to the national court itself to decide whether or not it wants to make a preliminary reference.1 Therefore, national courts whose decisions can be appealed against have a wide measure of discretion in deciding whether a question should be referred to the Court of Justice. Nevertheless, it is possible to identify a range of criteria which most national courts use in their assessment of whether or not to involve the Court of Justice in the resolution of the case before them.
Of these criteria the most important is probably the degree of doubt that the national court entertains in how to interpret the relevant EU rule. The more the national court is in doubt, the more reason it has, all things being equal, to refer. It is, however, not a straightforward exercise to set a general standard as to how much doubt a national court should have about the correct interpretation of EU law before it is appropriate for it to bring the matter before the Court of Justice.
From an EU law perspective, it is for each national court itself to decide this issue.2 On this basis, some national courts have found that the procedure laid down in Article 267(2) should only be applied if the case raises really difficult and important points of EU law and the answer of the Court of Justice, moreover, can be expected to have a conclusive effect on the outcome of the national proceedings.3 Other national courts have chosen to refer merely because they were not completely sure about the correct interpretation of an EU rule and found it likely that the ruling would be of help for the resolution of the main proceedings.4 In favour of the latter view it has been pointed out that only the Court of Justice has a panoramic view of the Member States and an intimate familiarity with the functioning of the EU, that the preliminary procedure furthermore has the advantage of making it possible to receive observations from the EU institutions and all Member States, and that the Court of Justice’s choice between alternative submissions might not only depend on purely legal considerations but also on policy reasons.5 Also it has rightly been suggested that a difference in the practice and reasoning of various national courts all things being equal makes a case for a reference to the Court of Justice stronger.6
Legal literature has also provided widely differing recommendations. While some authors argue that national courts should show restraint and in general have the requisite confidence to decide points of EU law themselves,7 others favour a stronger involvement of the Court of Justice.
In the opinion of the present authors, it would not be appropriate for national courts not sitting as courts of last instance, in general, to make use of the preliminary procedure in cases where they only have little doubt about the correct interpretation of EU law. Not only would such a liberal approach eliminate the distinction in Article 267 between appealable and non-appealable decisions, it would also ignore the fact that EU law is an integral part of national law and that it is a normal task of the national courts to decide on difficult legal questions. Indeed, the natural forum for EU law is just as much the national courts (and administrative authorities) as it is the Court of Justice. Moreover, as will be shown in section 2.2 herein, the disadvantages relating to, amongst other things, time and costs connected to the preliminary ruling procedure should not be underestimated.
That being said, it would be equally unfortunate if national courts whose decisions are subject to appeal were to take the position that they should be highly reticent in making preliminary references and only do so exceptionally when they were very much in doubt about the correct interpretation of a given EU provision.8 Rather, the proper course is an approach where the criteria concerning the relative difficulty in interpreting EU law is not applied as a stand-alone condition; instead the question of whether to refer should be made on the basis of a combined assessment of a number of factors as will be shown here. Indeed, such is also the practice of most national courts.
First, the advantages of a preliminary ruling can be limited if the case can be decided independently of EU law. For this reason it is understandable that national courts sometimes seek to decide a case solely on the basis of national law where this may properly be done in order to avoid making a preliminary reference.9
It might also be appropriate to take account of whether the question concerns a legal issue which can be expressed in abstract terms or whether it rather concerns a dispute about how an already well-established and fine-tuned EU law principle should be applied to a particular factual situation, the assessment of which depends heavily on a concrete evaluation of the special circumstances of the individual case. In the latter case a preliminary ruling might sometimes not cast significantly more light on the problem that the national court is facing, but merely result in the Court of Justice reiterating already well-known abstract criteria, leaving the actual application of these criteria to the referring court.10 One such example would be cases regarding whether a given consumer contract must be considered ‘unfair’ within the meaning of Directive 93/13 on unfair terms in consumer contracts. In this type of case the issue in dispute is often not the correct abstract interpretation of the EU law provision in question, but rather how the law should be applied to the facts, that is to say a task that first and foremost falls on the national court.11
In legal theory it has been argued that there can be more reason to make a reference if a case raises questions about the significance of different language versions and/or the need for a special purpose-made interpretation, as the Court of Justice is generally better placed than a national court to carry out such an examination.12 Moreover, a national court of one Member State should be more ready to make a preliminary reference where it is faced with a question as to whether the national law of another Member State contravenes EU law. In this situation a preliminary reference will offer that other Member State the opportunity of presenting before the Court of Justice its point of view on whether its law infringes EU law.13 Similarly, where the practice of other Member States is relevant for the correct interpretation of the applicable EU measure, a preliminary reference may often be appropriate in view of the fact that the Court of Justice may receive observations from those other States and, if necessary, itself invite those States to provide the relevant information.
Finally, in some situations it can be relevant that only the Court of Justice has the power to restrict the temporal effect of a given interpretation of an EU legal measure so that the interpretation laid down by the Court will only apply from a specific point in time. This factor might for example be conducive to making a preliminary reference in cases concerning the validity of a general tax law where the consequence of a judgment holding the tax law to be contrary to EU law can be far-reaching, unless the Court chooses to make a temporal restriction of its interpretation thereby precluding a flood of law suits for repayment of taxes already paid.14
The time taken to obtain a preliminary ruling must also be taken into account. Admittedly, in Pafitis the European Court of Human Rights ruled that this period of the overall procedure should not be included when calculating whether the parties have had access to a court within a reasonable time in accordance with Article 6 of the European Convention on Human Rights.15 Nevertheless, the wish to provide a speedy resolution to the dispute obviously must be attributed considerable weight in many cases.
The Rules of Procedure of the Court of Justice allow for an accelerated procedure or for giving special priority to certain references. However, both avenues are only open in special cases, and the two procedures will only rarely find their application merely because a party to the main proceedings has a strong interest in a speedy resolution in the case.16 The Court also increasingly uses the possibility of deciding obvious cases either by reasoned order or by a judgment without an Advocate General giving an Opinion.17 This means that the procedure is speeded up somewhat, but it still often takes more than a year from the reference being received by the Court of Justice until the Court rules on the preliminary question. Moreover, it is solely for the Court of Justice to decide whether to apply the above procedures and so the national court will not know in advance whether any of them will be applied in the case at hand. It is therefore very rare that preliminary questions are referred in cases concerning interim relief; to some extent this may also be due to the fact that the point of EU law may later arise when the substance of the claim is considered.18
Considerations of the total cost of a case due to the making of a preliminary reference can also be relevant. Indeed, although the parties to the main proceedings are not obliged to participate in the preliminary proceedings before the Court of Justice most prefer to do so.19 However, the parties’ costs of participating in a preliminary reference procedure are generally not likely to be higher than those incurred in possible appeal proceedings.
Therefore, an argument that a preliminary reference should not be made because of the costs that this may inflict on the parties may not be persuasive if a preliminary ruling can be expected to make an appeal superfluous.20 The same line of argument applies if it appears likely that the dispute will in any case give rise to a preliminary ruling, so that the question is in reality only whether the reference should be made by the present court or in connection with a probable later appeal. Finally, in criminal cases considerations pertaining to costs can hardly have the same weight as in civil cases.
The above considerations pertaining to costs and the length of proceedings make it natural to also consider the wishes of the parties to the main proceedings. Formally speaking, the preliminary procedure does not as such constitute a dispute resolution procedure; rather it is a non-contentious stage in the procedure before the national court.21 It follows that Article 267 does not provide a judicial remedy for the parties to the main proceedings. Therefore the mere fact that one party—or even all the parties—contends that the dispute gives rise to a question concerning the interpretation of EU law which should be referred to the Court of Justice does not mean that the national court or tribunal concerned is compelled to make a preliminary reference.22 Nor can the parties force a national court to make a preliminary reference by entering into an agreement to this effect before the dispute arises.23 From an EU law point of view, the question of making a reference is not subject to negotiation and agreement of the parties. The right and the duty to make a reference have been vested in the national courts not only to enable them to make sure that the citizen’s EU law rights are respected, but also more generally to ensure the uniform and correct application of EU law in all Member States. For the same reason, a national court may make a reference even if neither of the parties to the main proceedings has argued that the case raises questions of EU law, and even if all involved parties object to the making of such a reference.
In Salonia, the defendant in the main proceedings argued that the Court of Justice did not have jurisdiction to rule on the referred preliminary questions, among other things because neither the plaintiff nor the defendant had relied on EU law in their claims. The Court of Justice rejected that argument stating that the preliminary reference procedure did not imply that it was only competent to answer a preliminary question if one or more of the parties to the main proceedings had raised a question about the interpretation or validity of EU law; the Court was equally competent when such a question was raised ex officio by a national court that found that a decision on the question was necessary before giving judgment.24
In practice, however, the parties to the main proceedings play an important role in the national court’s decision of whether or not to refer.25 Often, the initiative of suggesting that a reference should be made comes from one of the parties, although national practice varies considerably in this respect. Especially in those legal systems where the role of counsel in clarifying the case is considerable, such as Great Britain, Ireland, and Denmark, references for preliminary rulings are generally made at the initiative of the parties.26 This has even led some to argue that, in the UK at least, the reality behind the preliminary procedure is closer to a litigant–Court of Justice relationship (with the national court acting as a relay between the two) than a national court–Court of Justice dialogue as frequently proclaimed by the Court of Justice.27
Moreover, it is probably not very often that a national court not sitting as a court of last instance makes a reference against the wishes of both parties, unless the court suspects that the parties have a common improper interest in avoiding a clarification of the application of EU law to the case; the latter may, for example, be the case in connection with the interpretation of a contract that may be contrary to Article 101 TFEU on agreements which distort competition.
In Ex p Schering Chemicals Ltd