Preliminary references
A mechanism by which national courts can ask questions of EU law to the CJEU.
Preliminary ruling
Decision of the CJEU in response to the question referred to by the national court.
Legal framework
Article 267 TFEU.
Cases can be used aswell.
Article 267 TFEU: The court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:
a) the interpretation of the treaties;
b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the union.
‘What’ can be referred?
a) the interpretation of the treaties;
b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the union.
‘Who’ can refer? Case 54/86 Dorsch Consult.
- A ‘court or tribunal’ of a Member state.
- ‘In order to determine whether a body making a [preliminary] reference is a court or tribunal … the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent.’
- Request for preliminary reference
- Request came from the Federal Supervisory Board Germany (body responsible for public procurements).
In deciding whether a body is a court or tribunal, the CJEU will take into account different factors, including;
a) Is the body ‘established by law’.
b) Is it ‘permanent’.
c) Does it have ‘compulsory jurisdiction’.
d) Is its procedure ‘inter parted’.
e) Does it apply rules of law?.
f) Is it independent?
‘When’ can or should they refer?
- “That court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgement.”
- “That court or tribunal shall bring the matter before the court.”
‘When’ can or should they refer?; Distinguish between:
a) Courts or tribunals ‘against whose decision there is no judicial remedy under national law’
b) Any other courts/ tribunals.
‘Courts or tribunals against whose decision there is no judicial remedy under national law’ (when can or should they refer?).
- Courts or tribunals of last instance.
- Mandatory obligation to make preliminary references.
- They must make preliminary reference when a case involves questions of EU law.
- May be exceptions.
‘Any other courts/ tribunals’ (When can or should they refer?).
- Discretion to make preliminary references.
- They can make preliminary references when case involves questions of EU law.
- Factors to take into account.
Who can make a preliminary reference?
A ‘court or tribunal’ of a member state.
Who can make a preliminary reference, case.
Case 54/86 Dorsch Consult.
When deciding whether a body is a court or a tribunal, the CJEU takes into account different factors, including:
a) Is the body established by law?
b) Is it permanent?
c) Does it have ‘compulsory jurisdiction’?
d) is its procedure ‘inter parted’ (involving different parties)?
e) Does it apply rules of law?
f) Is it independent?
When can or should they make a preliminary reference?
a) Courts or tribunals ‘ against whose decision there is no judicial remedy under the national law’
- courts or tribunals of last instance.
- Mandatory obligation to make preliminary references
b) Any other courts / tribunals
Discretion to make preliminary references.
Exceptions to making preliminary references, case.
Case 283/81 CILFIT
Do not have to make preliminary references if:
a) The question is irrelevant for the outcome.
b) The question has already been answered by the CJEU; or
c) The answer is so obvious that it leaves no scope of reasonable doubt (‘acte clair’).
Must take into consideration a number of factors (7):
1) The CLIFIT criteria.
2) The advantages of involving the CJEU (Samex).
3) Rules of domestic precedent (Rheinmulen).
4) The delay and expense. (Bulmer v Bollinger).
5) The wishes of the parties. (Portman Agrochemicals).
6) The timing of the reference.
7) The possibility of the reference being rejected by the CJEU.
CJEU will reject preliminary references when:
a) There is no genuine dispute. (Case 104/79 Fogila).
b) The factual/ legal context has not been explained (Case C - 458/93)
c) The question is irrelevant or hypothetical (Case C-621/18 Meilicke).
Expedited procedure applies when:
Applies where national courts request a ruling within a short time, or where the CJEU decides that a shorter timeframe is necessary.
Articles for expedited procedure.
Articles 105-106 in CJEU Rules of Procedure.
Urgent procedure, applies when:
Only applies to cross-boarder issues of ‘freedom, security and justice.’
Articles for urgent procedure.
Articles 107-114 in CJEU Rules of procedure.
