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The preliminary ruling procedure pursuant to Article 267 TFEU^1 by Dr. Wiebke Dettmers, LL.M. (University of Helsinki)^2
The preliminary ruling procedure pursuant to Article 267 TFEU has a particular role among the procedures within the CJEU’s jurisdiction. In 2015, the CJEU recorded a total of 713 new cases, 436 (approximately 61%) of which, were references for preliminary rulings^3. This amount was only surpassed in 2013 with 450 such references^4.
Expansion and transfers of competence were among the reasons giving rise to this increased need for judicial control of compliance with Union law. Furthermore, the preliminary ruling procedure fulfils the following functions:
− The preliminary ruling procedure secures legal unity within the European Union by guaranteeing that the law of the union is interpreted and applied uniformly, cf. Art. 19 (1) sentence 2 TEU. Correspondingly, the CJEU deems a reference useful when " there is a new question of interpretation of general interest for the uniform application of European Union law “^5. − The preliminary ruling procedure serves the further development of law. The CJEU recommends the initiation " where the existing case-law does not appear to be applicable to a new set of facts^6 ". − References for preliminary rulings serve the protection of individual rights. Options for the individual to directly seek legal protection through the CJEU are subject to strict limitations. Despite the new introduction under the Treaty of Lisbon of the right for individual natural or legal persons to initiate proceedings pursuant to Article 263
(^1) This article was published in German in the Schleswig-Holsteinische Anzeigen: SchlHA 2015, 250 – 255;
2 Homepage: www.justizministerialblatt.schleswig-holstein.de The author is a judge, currently working as a judicial assistant at the German Federal Court of Justice [Bundegerichtshof]. From 2009 to 2011 she worked in Brussels as the judicial consultant (European law) of the State Chancellery of Schleswig-Holstein and the Senate Chancellery of Hamburg, from 2011 to 2013 as the coordinator for judicial training in European Law for the German Federal Ministry of Justice and Consumer Protection [Bundesministerium der Justiz und für Verbraucherschutz]. The author regularly writes publications and gives talks on European law. 3 2015 Annual Report of the CJEU, p. 9, available at: 4 http://curia.europa.eu/jcms/upload/docs/application/pdf/2016-04/en_ap_jur15_provisoire2.pdf 2013 Annual Report of the CJEU, p. 9, available at: http://curia.europa.eu/jcms/upload/docs/application/pdf/2014-06/qdag14001enc.pdf. 5 Recommendations of the CJEU to national courts and tribunals in relation to the initiation of preliminary ruling proceedings, 6 November 2012, Official Journal of the European Union 2012, C 338/01 no. 13. 6 Recommendations of the CJEU to national courts and tribunals in relation to the initiation of preliminary ruling proceedings, 6 November 2012, Official Journal of the European Union 2012, C 338/01 no. 13.
(4) TFEU, individuals cannot directly initiate proceedings at the CJEU against generally applicable legal acts within the meaning of Article 289 TFEU^7. Thus, the preliminary ruling procedure provides for the option to initiate indirect proceedings.
1. Right to make a reference for preliminary ruling: The court or tribunal
Article 267 (2) TFEU says that it is a " court or tribunal" of a Member State that raises a question for the CJEU decide. The CJEU interprets these terms as independent terms of Union law, irrespective of how they are construed on the national level. Otherwise, it would be at the discretion of the Member States' legislatures to impose statutory limits on the right to make a reference for preliminary ruling. The CJEU has developed the following seven categories to define the terms:
They must be permanent bodies (1) which are established by law (2) and rule independently (i.e. they are not bound by instructions, and they are independent in applying the law and conducting the proceedings within the application scope of statutory provisions) (3) as the compulsory jurisdictions (4). The proceedings must be conducted before at least one independent trial court which takes evidence on disputed facts in order to investigate the circumstances of the case (5) where the proceedings must aim at a decision which has the same effects as a judgment handed down by an ordinary court in application of rules of law (6), and is definitive and enforceable (7)^8.
2. Reference for a ruling on interpretation or validity
The general question arises whether a reference for preliminary ruling is to be considered for each case where Union law could potentially be applied - regardless of which rules of procedure are valid.
Pursuant to Article 267 (1) TFEU, the CJEU gives preliminary rulings concerning
- the interpretation of the Treaties : Article 267 (1) sentence 1 (a) TFEU
7 CJEU judgment of 3 October 2013, C-583/11, "Inuit". 8 For criteria cf. CJEU, judgment of 31 January 2013, C-394/11 marginal note 38 with further references (for determining whether arbitral tribunals have the right to make references) and judgment of 14 June 2011, C-196/09, marginal note 37 with additional references; summarised by Shirvani in ZfBR 2014, 31ff.
- also on the issue of the right of arbitral tribunals; for the right of the federal procurement supervisory committees [Vergabekammern des Bundes] at the federal German antitrust office, Bundeskartellamt, cf. CJEU decision of 13 February 2014, C-555/13.
includes CJEU judgments^11.
Example : 12 A legal act is imposed against citizen F on the basis of a European regulation. F challenges the legal act in court. The court rules that Article Y of the European regulation breaches Article X TFEU.
Is Article Y of the regulation void?
3. Subject of reference: Union law
It must be borne in mind that the CJEU only decides on the interpretation of Union law , cf. Article 19 (1) sentence 2 TEU, Article 267 (1) TFEU. Its decision solely concerns questions of European law and is detached from the main proceedings. The CJEU has no jurisdiction to decide on the validity or interpretation of national rules. Also, the CJEU does not apply the Union law on which it has been asked to rule to the national case at hand. Therefore, the reference for a preliminary ruling does not release the national court from deciding the present legal dispute with regard to the application or interpretation of the national norm, while taking into account the decision rendered by the CJEU.
Example: In the case presented to her for decision, Judge R asks herself if § 312a (1) German Civil Code is compatible with the new EU-directive for consumer rights. The CJEU will not make the decision for her on a national level. However, it will explain if and in which way, for example, Article X of the directive precludes a national rule which prescribes that ... R must then consider this proviso in her decision with regard to § 312a (1) German Civil Code.
Frequently, the judge of the main proceedings confronts him/herself with the question whether the national rule which is to be applied by him/her is compatible with the provisions of Union law (see above example). This question is precisely not suitable for submission to the CJEU, as it is not within its jurisdiction to rule on the validity or interpretation of the national rule^13. However, it will decide how a specific rule of Union law is to be interpreted. It is then the task of the judge at the national level to apply the
11 See Latzel and Streinz in NJOZ 2013, p. 97 (99 ff.). 12 Example formed after CJEU, judgment of 22 October 1987, C-474/12, Circular 314/85 "Foto-Frost". 13 CJEU judgment of 1 December 1998, C-410/96 marginal note 19.
interpretation of Union law as rendered by the CJEU to the specific case and, if necessary, to "correctly" construe the national rule in accordance with the interpretation provided by the CJEU.
4. Relevance
The question raised in the reference must, from the perspective of the judge with jurisdiction on the national level, be relevant for the decision. A question is of no relevance if its answer, regardless of what it may be, can in no way affect the outcome of the case^14. Whether the question is actually relevant for the outcome of the specific case is solely at the discretion of the national court and is not subject to CJEU assessment. For one, the jurisdiction of the Member State court to review this question follows from the wording of Article 267 (2) TFEU: " if it considers that a decision on the question is necessary to enable it to give judgment ". Furthermore, it stems from the fact that the question of relevance is an issue of national law, for which - as discussed under point 3 - jurisdiction lies solely with the national court, which is ultimately responsible for the decision in the case at hand^15.
As a general rule, the CJEU is bound to the assessment of the Member State court. Thus, the questions submitted enjoy a presumption of relevance^16.
The CJEU may only reject a reference for a preliminary ruling for a lack of relevance if it is obvious that there is no relation between the examination of the validity of a rule of Community law sought by this court and the main action^17.
Example: 18 Judge R is irritated by the fact that under certain circumstances national rules may impose official liability on him. In reference to some legal dispute, he raises the question to the CJEU whether he is independent within the meaning of Union law despite his statutory liability pursuant to national law.
The CJEU rejects the request due to the fact that it bears no relation to the subject-matter of the main action. Equally, the submission of hypothetical questions constitutes misuse of
14 CJEU judgment of 06 October 1982, C-283/81 marginal note 10. 15 CJEU judgment of 14 December 1996, C-283/95 marginal note 11. 16 CJEU judgment of 15 May 2003, C-300/01 marginal note 31 with further references; CJEU judgment of 19 July 2012, C-470/11, marginal note 17 with additional citations. 17 CJEU judgment of 26 January 1990, C-283/88 marginal note 8. 18 CJEU judgment of 26 January 1990, C-283/88 "Falicola".
issues of Union law is precisely not at risk if a court of first instance has no doubts in the validity of Union law.
Example: The authorised counsel of the claimant challenges the validity of the rule of regulation X governing relevance. Judge J does not share the doubts.
If the judge hearing the main action has no doubts concerning the validity of the applicable law, he is under no obligation to raise the question of relevance^23.
However, the discretion of the courts of first instance is reduced to an obligation to make a reference for a preliminary ruling if the judge deems that Union law is invalid in the specific case and he thus does not want to apply it.
Example: Judge J deems Article X of the European regulation invalid and intends to decide the legal dispute without consideration of this provision.
The CJEU claims for itself an exclusive right to dismiss Union law. The requirement of uniform application of Union law by national courts, legal certainty of the Union, would be placed in jeopardy if courts in the Member States had the power to declare Union law invalid. The exclusive jurisdiction of the CJEU to declare Union law invalid follows from the wording of Article 267 (1) TFEU as well as from the supervisory function with regard to the review of acts by Union institutions^24.
b. Courts of final instance
Pursuant to Article 267 (3) TFEU courts against whose decisions there is no judicial remedy under national law must make a reference for a preliminary ruling if the present case gives rise to a question of relevance with regard to the interpretation or validity of Union law.
With regard to the duty to make a reference for a preliminary ruling, an initial differentiation must be made whether it arises in the main proceedings or in proceedings for interim
23 CJEU judgment of 22 October 1985, C-314/85 marginal note 14; CJEU judgment of 19 January 2010, C- 555/07 marginal note 51 - 53. 24 CJEU judgment of 22 October 1987, C-314/85 marginal note 15ff.
orders aimed at securing the provisional protection of legal rights:
- Decisions in proceedings for interim orders are also not considered to be "without judicial remedy" when they can no longer be challenged. There is no duty to make a reference for a preliminary ruling, as a party can seek a decision in the main proceedings and can obtain a ruling on the question pertaining to Union law^25.
In the main proceedings, the final decision against which there is no judicial remedy lies not only with the federal courts or the Federal Constitutional Court of Germany. A civil judge at a Municipal Court [Amtsgericht] can also be a court of final instance if no appeal can be lodged against its judgment. Article 267 (3) TFEU makes no distinction regarding the duty to refer the case for preliminary ruling on the grounds of whether first instance proceedings seem to be of legal significance or on the grounds of the dispute value^26. If national law permits that an exception can be made, and leave can be granted for the appeal, e.g. due to the fact that the question of Union law is a significant matter of legal principle, the judge can thus release himself from his duty to refer the case.
At an early date, the CJEU started developing exceptions for the duty of last-instance courts to make a reference for a preliminary ruling. On the one hand, this prevents unnecessary delays of the proceedings before the national court and, on the other hand, the exceptions may also protect the CJEU against congestion. In any case, the wording of Article 267 (3) TFEU, providing for the "all-encompassing" duty to make a reference for a preliminary ruling, seems inappropriate if
- the CJEU has already ruled on a point of law in question in a previous case (so-called acte éclairé )^27. or:
- if the question has not yet been answered by the CJEU, but the answer is "without doubt and obvious" ( acte clair ).
If a court of last instance wishes to desist from submitting a reference for a preliminary ruling on the grounds of an " acte éclairé ", it must be certain that the CJEU had previously
25 CJEU judgment of 24 May 1977, C-107/76 marginal note 5f.; 26 Cf. Broberg und Fenger in EuR 2010, p. 835 (850). 27 CJEU, judgment of 27 March 1963, C-28/62 "Costa"; CJEU judgment of 6 October 1982, C-283- "CILFIT", marginal note 14.
the date on which the provision in question is to be applied "^32.
One could presume that under these circumstances no national court would decide against a submission invoking obviousness as it is barely possible to reach this degree of certainty^33. However, the acte clair-doctrine has assumed great significance in practice. Member State courts often exercise a certain "functional flexibility" in its application^34 , which the CJEU has also countered^35.
6. Consequences of failing to make a reference
A distinction must be made between the national and European level with regard to the consequences arising from failing to make a reference for a preliminary ruling:
If a court fails to make a reference despite being under the obligation to do so, it is in breach of the principle of sincere cooperation (Article 4 TEU), according to which the Member States are to take any appropriate measure to fulfil their obligations arising from Union law. The European Commission would have the opportunity to initiate infringement proceedings pursuant to Article 258 TFEU, whereas it is unlikely that these proceedings would provide appropriate sanctions (cf. Article 269 TFEU). To this date, it was possible to avert proceedings before the claim was filed.
7. Stage of the proceedings
It is at the discretion of the Member State court at which stage in the proceedings it is appropriate to refer a question to the CJEU for a preliminary ruling^36. However, the following must be borne in mind: For one, the national court must have sufficient knowledge of the facts of the case in order to assess the relevance of the question referred and to formulate it with sufficient clarity^37. Also, aspects concerning the efficiency of the proceedings play a role and may be linked to national law. For example, if a
32 CJEU judgment of 6 October 1982, C-283-81 "CILFIT", marginal note 16-20. 33 Currently, there are 24 official EU languages; even checking the French and English language version is likely to pose regular problems to the national courts. 34 Cf. in more detail Broberg und Fenger in EuR 2010, p. 825 (839ff); cf. also von Danwitz in NvwZ-Beilage 2013, p. 44 (45f) and Latzel and Streinz in NJOZ 2013, p. 97 (99). 35 CJEU judgment of 13 January 2004, C-453/00 marginal note 28. 36 CJEU judgment of 17 April 2007, C-470/03 with further references; Recommendations of the CJEU to national courts and tribunals, cf. footnote 48, no. 18 and 19. 37 CJEU judgment of 30 March 2000, C-236/98; cf. also Latzel und Streinz in NJOZ 2013, 97 (100).
question of European law is at the fore of a legal dispute, it may seem advisable to make a reference for a preliminary ruling at an early stage in order to shorten lengthy proceedings. Even if the court of first instance derogates from the legal opinion expressed by the CJEU (so far), a reference at the earliest stage possible seems to stand to reason.
8. Formulating the reference for preliminary ruling
National procedural law stipulates which procedural steps must be followed before the reference for a preliminary ruling is formulated. As a general rule, for example, the right to be heard by the court and due process are to be granted to the parties of the legal dispute.
The fate of the ongoing proceedings is also governed by national law. In Germany, the national court suspends its own proceedings for the duration of the preliminary ruling procedure^38.
The reference for a preliminary ruling is to be formulated as an order. The Consolidated Version of the Rules of Procedure of the Court of Justice of 25 September 2012 (in the following Rules of Procedure)^39 , the Protocol on the Statute of the Court of Justice of the European Union of 26 February 2001 (in the following Statute- CJEU)^40 and Recommendations of the CJEU to national courts and tribunals in relation to the initiation of preliminary ruling proceedings, 6 November 2012 (in the following Recommendations-CJEU)^41 stipulate which points are to be considered. The CJEU has not compiled a standardised form or a similar comprehensive overview^42.
a. The contents
The operative part of the order includes - separately and clearly indicated, cf. Recommendations-CJEU no. 26 - the questions submitted to the CJEU. In the event that
38In analogy with § 148 German Code of Civil Prodecure (ZPO), in analogy with § 94 German Administrative Court Proceedings Act (VwGO), in analogy with § 114 German Social Courts Act or in analogy with the German Financial Court Proceedings Act. For examples from case law see Foerster in EuZW 2011, p. 901 (902). 39 Official Journal no. L 265 p. 1. 40 Official Journal no. C 80 p. 53. 41 Official Journal 20120/C 388/ 42 Sample forms for German reference orders are retrievable from legal databases, e.g. Prieß in Johlen, MPF Verwaltungsrecht, 4. Auflage 2014 „Vorlagebeschluss“ mit Erläuterungen, retrievable at beck-online.
9. Urgent procedure
The average time taken to deal with references for a preliminary ruling in the main proceedings was 15.3 months^45. This may be too long in urgent cases.
If the request refers to the regulations under Article 67 - 89 TFEU or corresponding secondary law, and if there is particular urgency attached to the case, e.g. because the duration of custody depends on the CJEU's answer (cf. Article 267 (4) TFEU) or there is a risk of irreparable deterioration of a parent-child-relationship, Article 107 ff of the Rules of Procedure provide for the option of initiating the urgent preliminary ruling procedure. Such cases are shortened to an average duration of approximately 2 months^46.
If the reference concerns other regulations than those under Article 67 - 89 TFEU, and where the nature of the case requires that it be dealt with within a short time, Article 105 f of the Rules of Procedure additionally offers the expedited procedure. Finally, other cases can at least be given priority pursuant to Article 53 (3) of the Rules of Procedure, if warranted by special circumstances of the particular case, such as the fact that it affects a particularly large group of people.
10. Effects on the main proceedings
The preliminary ruling procedure at the CJEU ends with an order^47 or with a judgment provided that it is not, upon proposal of the CJEU, withdrawn by the court or tribunal which made that request^48. The interim proceedings end on the national level with the judgment by the CJEU or the withdrawal of the reference for a preliminary ruling.
Due to the principle of sincere cooperation enshrined in Article 4 (3) TEU, the referring court is under the obligation to consider the CJEU's decision in its deliberations on the
45 2015 Annual Report of the CJEU, p. 9, available at: http://curia.europa.eu/jcms/upload/docs/application/pdf/2016-04/en_ap_jur15_provisoire2.pdf 46 2015 Annual Report of the CJEU, p. 9, available at: http://curia.europa.eu/jcms/upload/docs/application/pdf/2016-04/en_ap_jur15_provisoire2.pdf 47 Article 99 CJEU-Rules of Procedure: for acte clair or acte éclairé. 48 If the CJEU has already made a decision in another case which sufficiently answers the referred question, it is at the referring court's discretion to withdraw its reference per order and declaratory reversal of the suspension order, cf. Article 100 (1) Rules of Procedure; withdrawal is proposed by the CJEU.
legal dispute.^49 It is welcomed by the CJEU if the referring court or tribunal communicates its final decision and thus gives information on the action taken upon the CJEU's decision, cf. Recommendations-CJEU no. 35.
It shall be for the referring court or tribunal to decide as to the costs, cf. Article 102 Rules of Procedure. The preliminary ruling procedure is free of charge, cf. Article 143 Rules of Procedure. However, costs are incurred for representation before the CJEU. These costs of the interim proceedings are subject to the same fate as the costs for the decision to be made on the national level^50.
If the referred question has not been sufficiently answered for the referring court so that it can accordingly decide the legal dispute on the national level, a further reference is possible, Article 104 (2) Rules of Procedure.
11. Conclusion
In Europe, courts make moderate use of the preliminary ruling procedure. Of all EU Member States, Germany has referred the most cases. From 1952 to 2013 a total of 2, references were submitted from Germany. In 2015, 79 references were made. Germany is followed by Italy (1952 - 2013: a total of 1,326 references, 47 in 2015), the Netherlands (949 references, 40 in 2015) and France (931, 25 in 2015)^51. It may be surprising that a large amount of references were made by courts which decided to do so at their own discretion.
Even though the unknown procedure may still stop many courts from referring questions for preliminary ruling, the figures do indicate that the dialogue with the CJEU is slowly gaining intensity.
49 For a more detailed account of the binding effect see Marsch in Schoch/Schneider/Bier, VwGO, 26. Supplements 2014, Article 267 TFEU, marginal note 60 - 66. 5051 For a more detailed account see Latzel and Streinz in NJOZ 2013, p. 97 (109). 2015 Annual Report of the CJEU, p. 100, available at: http://curia.europa.eu/jcms/upload/docs/application/pdf/2016- 04/rapport_annuel_2015_activite_judiciaire_de.pdf
