Preliminary Rulings in EU Law: Procedures and Function, Summaries of Law

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Preliminary Ruling Procedures

Judicial dialogue to ensure the rights of

persons with disabilities

Eulalia Sanfrutos Cano ERA, Trier, 25 January 2013

The nature and function of the

reference for a preliminary ruling

• The procedure is founded on cooperation
• The national court is the first court of the

Union

• Consistent, effective application of Union

law

Who can make a reference?

• Any court or tribunal in a Member State
• Notion of “court or tribunal” → an autonomous concept in the law of the Union:  It must be established by law  It must be permanent  Its jurisdiction must be compulsory  Its procedure must be inter partes  It must apply rules of law  It must be independent
• The decision to make the reference lies solely with the national judicial body!

When can a reference for a preliminary

ruling be made?

• There must be a genuine dispute, not a fictitious one (see judgment of 16 December 1981 in case 244/80, Foglia v. Novelo )
• The question must be relevant to resolving the dispute (presumption of relevance in favour of the reference; see, for example, the judgment of 17 February 2011 in case C-52/09, TeliaSonera Sverige )
• Hypothetical questions are not admissible (e.g. judgment of 15 April 2010 in case C-215/98, E. Friz )
• A provision of national law must not prevent the national court from submitting a reference (judgments of 16 December 2008 in case C- 210/06, Cartesio , and 22 June 2010 in cases C-188/10 and C- 189/10, Melki and Abdeli )

Submitting the reference –

practical aspects

• When is the right time to submit the reference for a

preliminary ruling?

• Form and content of the reference order
• Translation requirements
• The CJEU Secretariat
• Costs and free legal assistance
• Reformulation of the question by the CJEU

The procedure before the CJEU

Written stage Decision by the national court or tribunal to submit a reference Translation into all official languages of the European Union Publication of the questions for preliminary ruling in the Official Journal of the European Union (series C) Notification of the parties, Member States, EU institutions, EEA countries and EFTA Surveillance Authority Written comments by the parties, States and institutions Drafting of a preliminary report by the Judge Rapporteur General meeting of Judges and Advocates General Assignment of the case to one of the formations of the Court of Justice [Measures of inquiry] Oral stage [Opinion of the Advocate General] Deliberations by the Judges of the Court Judgment

A victim of its own success?

• Growing number of references for preliminary rulings
  • 2007  265
  • 2011  423
• Average duration of the procedure
  • 2007  19.3 months
  • 2011  16.4 months
• Expediting requests for a preliminary ruling: the accelerated procedure and the urgent procedure