Probleem 8
Bronnen:
- Schütze – An Introduction to EU Law – Chapter 7.3 & 7.4
- Foto-Frost case
- CILFIT case
- Köbler case
1. How does the preliminary reference procedure work?
Preliminary questions help the interpretation of the EU treaties. The European Court and national courts collaborate to rule in a
single case. The procedure is laid down in art. 267 TFEU.
Jurisdiction of the European Court
The CJEU can cover all Union law. However, it cannot interpret national law. National courts can use preliminary questions for:
- The validity of EU law
- The interpretation of EU law
Art. 267 TFEU excludes the court to apply the treaties. However, the distinction between interpretation and application can be
very narrow (Sunday trading cases).
The Legal Nature of Preliminary Rulings
Only the national court can ask preliminary questions, not the parties in the dispute. The court’s rulings over the questions are
binding to the national court requesting. The court clarified that the preliminary ruling is not a decision and will not be seen as
an act of a Union institution. There are two views on the nature of preliminary rulings:
- Common law view: primary rulings are legal precedents that generally bind all national courts. Judgements of the
European Court are binding erga omnes.
o Mistake: the court reach back in time to when the positive law was adopted and does not make new legal rules
(declaration theory).
- Civilian philosophy: the rulings of the court are not binding because they are only authoritative evidence of EU law: the
interpretation by the court will become part of the provision and affects all those who want to derive rights from that
provision.
o Mistake: this vision creates a retroactive effect. The court limited those effects to an effect ex nunc. However,
when there is a misinterpretation of a provision it will have retroactive effect.
Who can start a preliminary procedure?
Art. 267 TFEU says that courts and tribunals (judicial authorities) can ask preliminary questions. In the Dorsch Consult case there
were six criteria to know if a court or tribunal has the right to ask a preliminary question:
1) The body must be established by law
2) It needs to be permanent
3) Its jurisdiction is compulsory
4) Its procedure is inter partes
5) Applies rules of law
6) The body must be independent
The jurisdiction goes for each level of national judiciary. Otherwise, the jurisdiction of the CJEU and the application of EU law at
all levels of the national system would be compromised.
In the Köbler case the Court said that all national courts and tribunals can ask preliminary questions. Courts against
whose decision rests appeal are in principle not obliged to make a preliminary reference but non-referral may bear the
risk of state liability if the EU law is applied wrongly by the national court or tribunal. When there is no appeal possible,
and it is necessary Supreme Court to ask a preliminary question and it doesn’t, the State will be liable (par. 116-126).
What can be asked?
The courts can ask for a preliminary ruling when in a pending case when there is a question to which the answer is necessary for
a judgement (art. 267(3) TFEU). The court will not criticize the grounds and purpose of the request. However, when there isn’t a
dispute anymore, the court can reject the request. Also, to prevent abuse of the preliminary reference procedure, the court will
check if it has jurisdiction. But eventually the national courts must decide if the question asked is really essential. The court
therefore only denies requests when there is no connection between the facts of the case and the question.
Obligation to refer and ‘Acte Clair’
There are two options that exist when deciding on if the national court must refer the question to the CJEU:
- Institutional theory: the highest court in the Member State must refer the question to the CJEU.
- Procedural reading: the court of last instance to the judicial procedure. This refers the obligation to every national court
that cannot be appealed to.
Bronnen:
- Schütze – An Introduction to EU Law – Chapter 7.3 & 7.4
- Foto-Frost case
- CILFIT case
- Köbler case
1. How does the preliminary reference procedure work?
Preliminary questions help the interpretation of the EU treaties. The European Court and national courts collaborate to rule in a
single case. The procedure is laid down in art. 267 TFEU.
Jurisdiction of the European Court
The CJEU can cover all Union law. However, it cannot interpret national law. National courts can use preliminary questions for:
- The validity of EU law
- The interpretation of EU law
Art. 267 TFEU excludes the court to apply the treaties. However, the distinction between interpretation and application can be
very narrow (Sunday trading cases).
The Legal Nature of Preliminary Rulings
Only the national court can ask preliminary questions, not the parties in the dispute. The court’s rulings over the questions are
binding to the national court requesting. The court clarified that the preliminary ruling is not a decision and will not be seen as
an act of a Union institution. There are two views on the nature of preliminary rulings:
- Common law view: primary rulings are legal precedents that generally bind all national courts. Judgements of the
European Court are binding erga omnes.
o Mistake: the court reach back in time to when the positive law was adopted and does not make new legal rules
(declaration theory).
- Civilian philosophy: the rulings of the court are not binding because they are only authoritative evidence of EU law: the
interpretation by the court will become part of the provision and affects all those who want to derive rights from that
provision.
o Mistake: this vision creates a retroactive effect. The court limited those effects to an effect ex nunc. However,
when there is a misinterpretation of a provision it will have retroactive effect.
Who can start a preliminary procedure?
Art. 267 TFEU says that courts and tribunals (judicial authorities) can ask preliminary questions. In the Dorsch Consult case there
were six criteria to know if a court or tribunal has the right to ask a preliminary question:
1) The body must be established by law
2) It needs to be permanent
3) Its jurisdiction is compulsory
4) Its procedure is inter partes
5) Applies rules of law
6) The body must be independent
The jurisdiction goes for each level of national judiciary. Otherwise, the jurisdiction of the CJEU and the application of EU law at
all levels of the national system would be compromised.
In the Köbler case the Court said that all national courts and tribunals can ask preliminary questions. Courts against
whose decision rests appeal are in principle not obliged to make a preliminary reference but non-referral may bear the
risk of state liability if the EU law is applied wrongly by the national court or tribunal. When there is no appeal possible,
and it is necessary Supreme Court to ask a preliminary question and it doesn’t, the State will be liable (par. 116-126).
What can be asked?
The courts can ask for a preliminary ruling when in a pending case when there is a question to which the answer is necessary for
a judgement (art. 267(3) TFEU). The court will not criticize the grounds and purpose of the request. However, when there isn’t a
dispute anymore, the court can reject the request. Also, to prevent abuse of the preliminary reference procedure, the court will
check if it has jurisdiction. But eventually the national courts must decide if the question asked is really essential. The court
therefore only denies requests when there is no connection between the facts of the case and the question.
Obligation to refer and ‘Acte Clair’
There are two options that exist when deciding on if the national court must refer the question to the CJEU:
- Institutional theory: the highest court in the Member State must refer the question to the CJEU.
- Procedural reading: the court of last instance to the judicial procedure. This refers the obligation to every national court
that cannot be appealed to.
