HOME

TheInfoList



OR:

A preliminary ruling is a decision of the
European Court of Justice The European Court of Justice (ECJ, french: Cour de Justice européenne), formally just the Court of Justice, is the supreme court of the European Union in matters of European Union law. As a part of the Court of Justice of the European U ...
(ECJ) on the interpretation of
European Union law European Union law is a system of rules operating within the member states of the European Union (EU). Since the founding of the European Coal and Steel Community following World War II, the EU has developed the aim to "promote peace, its valu ...
that is given in response to a request (preliminary reference) from a court or a tribunal of a
member state A member state is a state that is a member of an international organization or of a federation or confederation. Since the World Trade Organization (WTO) and the International Monetary Fund (IMF) include some members that are not sovereign state ...
. A preliminary ruling is a final determination of European Union law, with no scope for appeal. The ECJ hands down its decision to the referring court, which is then obliged to implement the ruling. Preliminary rulings are issued by the ECJ. The
Treaty of Lisbon The Treaty of Lisbon (initially known as the Reform Treaty) is an international agreement that amends the two treaties which form the constitutional basis of the European Union (EU). The Treaty of Lisbon, which was signed by the EU member s ...
provides that jurisdiction may be delegated to the General Court, but that provision has yet to be put into effect. If, as in '' Factortame'', the ECJ holds that a member state's legislation conflicts with EU law, the member state is required to "disapply" such law, but the ECJ may not amend the member state's legislation itself. Preliminary rulings make up the bulk of business in the
Court of Justice of the European Union The Court of Justice of the European Union (CJEU) (french: Cour de justice de l'Union européenne or "''CJUE''"; Latin: Curia) is the judicial branch of the European Union (EU). Seated in the Kirchberg quarter of Luxembourg City, Luxembour ...
since few persons have ''
locus standi Locus (plural loci) is Latin for "place". It may refer to: Entertainment * Locus (comics), a Marvel Comics mutant villainess, a member of the Mutant Liberation Front * ''Locus'' (magazine), science fiction and fantasy magazine ** ''Locus Award' ...
'' to litigate in the Luxembourg court. "Privileged parties" with standing include all member states and EU institutions, but a private person or "undertaking" has standing only if it is the addressee of an EU decision.


Procedure

If a court or tribunal of a member state finds a provision of
EU law European Union law is a system of rules operating within the member states of the European Union (EU). Since the founding of the European Coal and Steel Community following World War II, the EU has developed the aim to "promote peace, its val ...
to be ambiguous, equivocal or unclear, it may seek a preliminary ruling, and a court or tribunal from which there is no appeal must make an application. In either case, the domestic court be adjourned until the ECJ ruling is issued. The question to the ECJ must be short and succinct, but it may be accompanied by documents explaining the issue's context and circumstances. The ECJ may decline to give judgement in the absence of a genuine dispute on the basis that it will not consider "moot points". Article 267 of the Treaty on the Functioning of the European Union provides: That is qualified by Article 275 (excluding
Common Foreign and Security Policy The Common Foreign and Security Policy (CFSP) is the organised, agreed foreign policy of the European Union (EU) for mainly security and defence diplomacy and actions. CFSP deals only with a specific part of the EU's external relations, whi ...
) and Article 276 (excluding member state acts in the area of freedom, security and justice).


Right and duty to refer for preliminary ruling

The highest court in a jurisdiction must refer and lower courts may refer to Article 267 TFEU. For the rules in the United Kingdom while it was an EU member state, see s 2(1) European Communities Act 1972 and Part 68 Civil Procedure Rules. Article 267 of the Treaty on the Functioning of the European Union (TFEU), establishing the preliminary reference procedure, differentiates between the right and the duty of national courts to seek a preliminary ruling. Under the discretionary reference stipulated in Article 267(2) TFEU, a national "court or tribunal" may ask the ECJ to give a preliminary ruling if it considers that a decision on the question is "necessary" to enable it to judge a particular case. The obligatory reference (duty to refer) is established in two cases: with respect to national courts adjudicating at last instance (Article 267(3) TFEU) and with respect of all courts faced with a question of the validity of EU law. The function of the obligation to refer is "to prevent a body of national case law not in accord with the rules of Ulaw from coming into existence in any member state": Case 107/76 ''Hoffmann-La Roche v Centrafarm'' at 5. Both the highest court in a member state and the Benelux court has the obligation to refer: Case C-337/95 ''Parfums Christian Dior v Evora''. The obligation of national courts of last instance to refer for a preliminary ruling when a question of the interpretation of EU law arises is subject to certain exceptions. In accordance with the jurisprudence of the Court, a national court is relieved from the duty to refer when questions of EU law are not relevant to the decision in the main proceedings, if a national court is "materially identical with a question which has already been subject of a preliminary ruling in a similar case" () or if when the proper interpretation of EU law is "so obvious as to leave no scope for any reasonable doubt".().


Courts that may ask questions

What constitutes a "court or tribunal" is a matter of EU law and is not to be determined by reference to national law. In determining whether or not a body is a "court or tribunal of Member State", the EU courts take a number of issues into account: whether it is established by law is permanent, has compulsory jurisdiction, has an ''inter partes'' procedure, applies rules of law and is independent. Only a body that "is established by law... is permanent...
hose A hose is a flexible hollow tube designed to carry fluids from one location to another. Hoses are also sometimes called '' pipes'' (the word ''pipe'' usually refers to a rigid tube, whereas a hose is usually a flexible one), or more generally ...
jurisdiction is compulsory...
hose A hose is a flexible hollow tube designed to carry fluids from one location to another. Hoses are also sometimes called '' pipes'' (the word ''pipe'' usually refers to a rigid tube, whereas a hose is usually a flexible one), or more generally ...
procedure is inter partes... applies rules of law and... is independent" can be a court or tribunal that may refer: Case C-53/03 ''Syfait v GlaxoSmithKlein'' at 29. A body with the right to refer under EU law cannot be deprived of it by national law: Cases 146/73 and 166/73 ''Rheinmühlen''. However, those criteria are not absolute. In ''Broekmeulen v Huisarts Registratie Commissie'', the CJEU ruled that a body established under the auspices of the Royal Netherlands Society for the Promotion of Medicine was a "court or tribunal" within the meaning of the treaty even though the society was a private association. Also, the Benelux Court of Justice was considered a court within that context as a court common to several (Netherlands, Belgium and Luxembourg) member states. Also, the
Unified Patent Court The Unified Patent Court (UPC) is a common patent court open for participation of member states of the European Union, and created by the "Agreement on a Unified Patent Court" (UPC Agreement or UPCA), which is provisionally applicable since 19 ...
, as a court common to several member states is expected to have the ability to ask prejudicial questions.


Grounds

Such a reference is possible for all EU acts regardless of direct effect
Case C-373/95 ''Maso and Others v INPS''
at 28. However, the ECJ will not hear preliminary references arising out of hypothetical disputes
Case 244/80 ''Foglia v Novello''


Interpreting non-EU instruments

The ECJ is competent to give rulings on the interpretation of treaties to which the EU is a party, as those treaties are considered to be part of EU law. Decisions of the ECJ are in such a case binding only on the EU, not the other parties to the agreement. The ECJ claims jurisdiction to interpret international agreements concluded by the
European Council The European Council (informally EUCO) is a collegiate body that defines the overall political direction and priorities of the European Union. It is composed of the heads of state or government of the EU member states, the President of the ...
since they are acts of an EU institution
Case 181/73 ''Haegeman v Belgium''
That extends to the GATT for which EU has substituted its member states
Case C-267/81 ''SPI''
That also applies to mixed agreements even if the issue only partly falls within EU law
Case C-53/96 ''Hermès v FHT''
at 32. The ECJ claims jurisdiction even over acts of institutions established by an association agreement
Case C-192/89 ''Sevince''
In contrast, the claim does not extend to an international agreement that was concluded by a member state before its EU accession if the agreement conflicts with EU law
Case C-158/91 ''Levy''
The ECJ has jurisdiction confined to EU law and cannot consider the extent of reference to EU law by national provisions, which are a matter of national law
Case C-297/88 ''Dzodzi''
at 42. The ECJ does not interpret national law that is worded identically to EU provisions
Case C-346/93 ''Kleinwort Benson v City of Glasgow District Council''
The ECJ is also competent regarding the application of certain treaties between EU member states but may be subject to different procedures. Two such treaties are the 1968 Brussels Convention on jurisdiction in civil and commercial matters and the 1980 Rome Convention on applicable law, which are now mostly replaced by the Brussels I and the Rome I Regulations, respectively. A peculiarity relates to arbitration on the Brexit withdrawal agreement since arbiters must ask for a preliminary ruling in matters of EU law that is binding upon both the EU and the UK. Based on the same agreement, UK courts must or may ask for a preliminary ruling regarding how Northern Ireland has EU law applied, which is related mainly to trade in goods.


Effects

The ECJ judgment in a reference is declaratory, and remedies, costs, etc. are matters for national courts. The ECJ may choose to rule only on the validity and the interpretation of EU law and to leave the application to the facts to the national court that made the reference
Case 36/74 ''Walrave and Koch v Union Cycliste Internationale''
Alternatively, it may choose to rule very closely to the facts in the case
Case 32/75 ''Cristini v SNCF''
If the ECJ already ruled on a point in a previous case, there is no obligation to refer
Case 28/62 ''Da Costa''
The decision is then ''
res judicata ''Res judicata'' (RJ) or ''res iudicata'', also known as claim preclusion, is the Latin term for "a matter decided" and refers to either of two concepts in both civil law and common law legal systems: a case in which there has been a final jud ...
'' (at least in the weak sense) and binds the national court ''a quo'' that made the reference, and future similar cases on the same issue require no further reference if the answer is "so obvious as to leave no scope for any reasonable doubt"
Case 283/81 ''CILFIT''ECJ Rules of Procedure Article 104(3)
"Where national legislation has been the subject of different relevant judicial constructions, some leading to the application of that legislation in compliance with Ulaw, others leading to the opposite application, it must be held that, at the very least, such legislation is not sufficiently clear to ensure its application in compliance with Ulaw"
Case C-129/00 ''Commission v Italy''
at 33. The ECJ judgment has the force of ''res judicata'' and is binding not only on the national court on whose initiative the reference for a preliminary ruling was made but also on all member states' national courts. In the United Kingdom when it was a member state, ''res judicata'' was in the strong sense: a previous ECJ ruling would bind of its courts
s 3(1) European Communities Act 1972
In the context of a reference for a preliminary ruling concerning validity, if the European instrument is declared invalid, all of the instruments adopted based on it are also invalid. It then falls to the competent European institutions to adopt a new instrument to rectify the situation.


Similar systems

The possibility to ask for a preliminary ruling is also embedded in other legal systems: *The courts of Belgium, the Netherlands and Luxembourg may ask "questions regarding the interpretation of the law" to the Benelux Court of Justice regarding certain Benelux conventions and regulations. *Iceland, Liechtenstein and Norway may request the EFTA Court of Justice for an
advisory opinion An advisory opinion is an opinion issued by a court or a commission like an election commission that does not have the effect of adjudicating a specific legal case, but merely advises on the constitutionality or interpretation of a law. Some co ...
regarding the interpretation of the
European Economic Area The European Economic Area (EEA) was established via the ''Agreement on the European Economic Area'', an international agreement which enables the extension of the European Union's single market to member states of the European Free Trade As ...
Agreement, as well as EU regulations that apply to those states.


See also

*
Reference question In Canadian law, a reference question or reference case (formally called abstract review) is a submission by the federal or a provincial government to the courts asking for an advisory opinion on a major legal issue. Typically the question conc ...
, submission by the federal or a provincial government under Canadian law


References

{{EU law European Union law Court of Justice of the European Union