7/29/2019 preliminary reference

1/7

The preliminaryreferenceprocedure is used when a national court or

tribunal refers a question of EU law to the European Court of Justice

(ECJ) for a preliminary ruling so as to enable the national court, on

receiving that ruling, to decide the case before it. Questions of EU law

will arise in cases before the courts of different Member States. Thefunction of the preliminaryreferenceprocedure is to ensure uniform

interpretation and validity of EU law across all the Member States.

The procedure is laid down in Article267 TFEU: Where such a

question is raised before any court or tribunal of a Member State, that

court may, if it considers that a decision on the question is necessary to

enable it to give judgment, require the Court of Justice to give a ruling

thereon.

While lower courts have discretion as to whether to make references tothe ECJ, Article267 TFEU excludes such discretion in the case of final

courts of appeal.

The ECJ characterises the preliminaryreferenceprocedure as based on

cooperation between national courts and the ECJ. However, it is the ECJ

that controls this cooperation and sets its terms. In its dialogue with

national courts, it has the upper hand and has succeeded in co-opting

national courts into an EU judicial system.

In practice, labour courts in the Member States have differed greatly in

the use made of the preliminaryreferenceprocedure. Despite the

uniform requirements ofArticle267 TFEU, the number of references

made by national labour courts in different Member States varies

considerably.

The ECJ has been sensitive to the charge of usurping the role of national

courts in deciding cases. However, the technique adopted by the Court is

problematic. The ECJ aims to lay down EU law principles, but leaves the

application of these principles to national courts. The boundaries are

often unclear. A principle may be defined in terms that leave little or no

discretion to national courts; or the principle may be defined so vaguely

as to provide the national court with little in the way of useful guidance.

Cases involving EU law on employment and industrial relations provide

illustrations. For example, the European Court has laid down the principle

that indirect discrimination is justifiable on objective grounds, which

must, however, comply with the general principle of proportionality but

both objective grounds and proportionality are to be left for national

courts to decide (Bilka-Kaufhaus GmbH v. Karin Weber von Hartz, Case170/84, [1986] ECR 1607).

http://www.eurofound.europa.eu/areas/industrialrelations/dictionary/definitions/europeancourtofjustice.htmhttp://www.eurofound.europa.eu/areas/industrialrelations/dictionary/definitions/nationallabourcourts.htmhttp://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61984J0170:EN:HTMLhttp://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61984J0170:EN:HTMLhttp://www.eurofound.europa.eu/areas/industrialrelations/dictionary/definitions/europeancourtofjustice.htmhttp://www.eurofound.europa.eu/areas/industrialrelations/dictionary/definitions/nationallabourcourts.htmhttp://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61984J0170:EN:HTMLhttp://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61984J0170:EN:HTML

7/29/2019 preliminary reference

2/7

Despite these difficulties, the preliminaryreferenceprocedure has

become the most frequently used channel of access to the ECJ.

7/29/2019 preliminary reference

3/7

The reference for a preliminary ruling

The reference for a preliminary ruling is a procedure

exercised before the Court of Justice of the EuropeanUnion. This procedure enables national courts to question

the Court of Justice on the interpretation or validity of

European law.

The reference for preliminary ruling forms part of the

procedures which may be exercised before the Court of

Justice of the European Union (CJEU). This procedure is

open to all Member States national judges. They may

refer a case already underway to the Court in order to

question it on the interpretation or validity of European

law.

In contrast to other judicial procedures, the reference of a

preliminary ruling is therefore not a recourse taken

against a European or national act, but a question

presented on the application of European law.

The reference for a preliminary ruling thus promotes

active cooperation between the national courts and the

Court of Justice and the uniform application of European

law throughout the EU.

Nature of references for a preliminary ruling

Any national court to which a dispute in which the

application of a rule of European law raises questions(original case) has been submitted can decide to refer to

the Court of Justice to resolve these questions. Therefore,

there are two types of reference for a preliminary ruling:

a reference for a ruling on the interpretation of the

European instrument: the national judge requests

the Court of Justice to clarify a point of interpretation

of European law in order to be able to apply it

correctly;

7/29/2019 preliminary reference

4/7

a reference for a preliminary ruling on the validity of

the European instrument: the national judge

requests the Court of Justice to check the validity of

an act of European law.

The reference for a preliminary ruling is therefore a

reference "from one judge to another". Although a

referral to the Court of Justice may be requested by one

of the parties involved in the dispute, the decision to do so

rests with the national court. In this respect, Article 267 of

the Treaty on the Functioning of the EU specifies that

national courts which act as a final resort, against whose

decisions there is no judicial remedy, are obliged toexercise the reference for a preliminary ruling if one of the

parties requests it. In contrast, national courts which are

not a final resort are not obliged to exercise the reference

for a preliminary ruling even if one of the parties requests

it. In any case, all national courts must immediately refer

a matter to the Court of Justice in cases of doubt

regarding a European provision.

The Court of Justice therefore only gives a decision on the

constituent elements of the reference for a preliminary

ruling made to it. The national court therefore remains

competent for the original case.

On principle, the Court of Justice must answer the

question put to it. It cannot refuse to answer on the

grounds that this response would be neither relevant nor

timely as regards the original case. It can, however,refuse if the question does not fall within its sphere of

competence.

Scope of preliminary rulings

The Court of Justice Decision has the force ofres judicata.

It is, furthermore, binding not only on the national court

on whose initiative the reference for a preliminary ruling

http://eur-lex.europa.eu/JOHtml.do?uri=OJ%3AC%3A2010%3A083%3ASOM%3AEN%3AHTMLhttp://eur-lex.europa.eu/JOHtml.do?uri=OJ%3AC%3A2010%3A083%3ASOM%3AEN%3AHTML

7/29/2019 preliminary reference

5/7

was made but also on all of the national courts of the

Member States.

In the context of a reference for a preliminary ruling

concerning validity, if the European instrument is declaredinvalid 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.

7/29/2019 preliminary reference

6/7

Jump to: navigation, search

A preliminary ruling is a decision of the European Court of Justice

(ECJ) on the interpretation ofEuropean Union law, made at the request of

a court of a European Union member state. The name is somewhat of amisnomer in that preliminary rulings are not subject to a final

determination of the matters in question, but are in fact final

determinations of the law in question. Preliminary rulings can also be

made, in certain circumstances, by the European General Court, although

most are made by the ECJ.

A request (or reference) for a preliminary ruling is made by submitting

questions to the ECJ for resolution. However, questions are not answered

in abstraction, but rather are submitted together with the circumstances

leading up to their being asked. Thus, whilst the ECJ is limited todeciding the law in question, the ECJ's ruling frequently leaves little

room to rule other than in a certain way. The ECJ may also decline to

give judgement in the absence of a genuine dispute.[1]

Article 267 of the Treaty on the Functioning of the European Union states

the following:

"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;

Where such a question is raised before any court or tribunal of a

Member State, that court or tribunal may, if it considers that a

decision on the question is necessary to enable it to give judgment,

request the Court to give a ruling thereon.

Where any such question is raised in a case pending before a court

or tribunal of a Member State against whose decisions there is nojudicial remedy under national law, that court or tribunal shall

bring the matter before the Court.

If such a question is raised in a case pending before a court or

tribunal of a Member State with regard to a person in custody, the

Court of Justice of the European Union shall act with the minimum

of delay."

What constitutes a "court or tribunal" is a matter of Union law and it is

not to be determined by reference to national law.[2] In determining

whether or not a body is a "court or tribunal of Member State" the

http://en.wikipedia.org/wiki/Preliminary_ruling#mw-head%23mw-headhttp://en.wikipedia.org/wiki/Preliminary_ruling#p-search%23p-searchhttp://en.wikipedia.org/wiki/European_Court_of_Justicehttp://en.wikipedia.org/wiki/European_Union_lawhttp://en.wikipedia.org/wiki/European_Union_member_statehttp://en.wikipedia.org/wiki/General_Court_(European_Union)http://en.wikipedia.org/wiki/Preliminary_ruling#cite_note-0%23cite_note-0http://en.wikipedia.org/wiki/Treaty_on_the_Functioning_of_the_European_Unionhttp://en.wikipedia.org/wiki/Treaties_of_the_European_Unionhttp://en.wikipedia.org/wiki/Preliminary_ruling#cite_note-1%23cite_note-1http://en.wikipedia.org/wiki/Preliminary_ruling#mw-head%23mw-headhttp://en.wikipedia.org/wiki/Preliminary_ruling#p-search%23p-searchhttp://en.wikipedia.org/wiki/European_Court_of_Justicehttp://en.wikipedia.org/wiki/European_Union_lawhttp://en.wikipedia.org/wiki/European_Union_member_statehttp://en.wikipedia.org/wiki/General_Court_(European_Union)http://en.wikipedia.org/wiki/Preliminary_ruling#cite_note-0%23cite_note-0http://en.wikipedia.org/wiki/Treaty_on_the_Functioning_of_the_European_Unionhttp://en.wikipedia.org/wiki/Treaties_of_the_European_Unionhttp://en.wikipedia.org/wiki/Preliminary_ruling#cite_note-1%23cite_note-1

7/29/2019 preliminary reference

7/7

European Courts will take a number of issues into account, namely

whether

1. it is established by law,

2. it is permanent,3. its jurisdiction is permanent,

4. it has an adversarial procedure,

5. it applies rules of law, and

6. it is independent.[3]

However, these criteria are not absolute. InBroekmeulen v Huisarts

Registratie Commissie[4] the ECJ ruled that a body established under the

auspices of the Royal Medical Society for the Promotion of Medicine was

a "court or tribunal" within the meaning of the treaty, even though that

society was a private association.

http://en.wikipedia.org/wiki/Preliminary_ruling#cite_note-2%23cite_note-2http://en.wikipedia.org/wiki/Preliminary_ruling#cite_note-3%23cite_note-3http://en.wikipedia.org/wiki/Preliminary_ruling#cite_note-2%23cite_note-2http://en.wikipedia.org/wiki/Preliminary_ruling#cite_note-3%23cite_note-3