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Training package on National Judges and the EU Aarhus Acquis - Focus on Access to Justice

Module 5: The role of the national judge in the European Judicial System and the Procedures of the European Court of Justice (CJEU)

Procedures in the Court of Justice: Preliminary reference procedure

The preliminary reference procedure is laid down in Article 19 (3) (b) TEU and in Article 267 TFEU. It aims to achieve a uniform interpretation of European Union law by all domestic courts and to assist in the effective judicial protection of individuals. It relies on cooperation between national judges and the Court of Justice (see Cf. Joined Cases C 261/08 and C 348/08 Zurita García and Choque Cabrera [2009] ECR I 10143, paragraph 36, Case C-210/06 Cartesio [2008] ECR I-9641, paragraph 91).

The object of the reference consists questions regarding

  1. the interpretation of primary European Union law, i.e., the Treaties, Protocols and the Charter of Fundamental Rights and/or
  2. the interpretation and/or validity of secondary European Union law, that is regulations, directives, decisions and international agreements of the European Union.
  3. In contrast, the interpretation or validity of domestic law or of the international agreements of the member states is not a valid object for a reference.

In principle, all questions must be relevant for the outcome of the case pending before the domestic court. However, the CJEU considers that, in principle, the referring court alone can assess the necessity of the questions and determine their subject-matter. Therefore, the CJEU will examine the admissibility of a question only in exceptional circumstances. That is the case in particular where the problem referred to the Court is purely hypothetical or where the interpretation of a Community rule which is sought by the national court has no relation to the actual facts of the main action or to its purpose (see Case C 415/93 Bosman [1995] ECR I 4921, paragraph 61, Case C 466/04 Acereda Herrera [2006] ECR I 5341, paragraph 48, Case C 380/05 Centro Europa 7 [2008] ECR I 349, paragraph 53, Joined Cases C 188/10 and C 189/10 Melki and Abdeli [2010] ECR I 5667, paragraph 27).

References can only be made by courts of the member states, but not by other bodies, e.g., private parties or administrative authorities (see Cf. Case C-53/03 Syfait [2005] ECR I 4609, Case C 394/11, Belov [2013] ECR I 0000).

If questions concerning the interpretation of European Union law arise in a pending case, all domestic courts are competent to make a reference (Article 267 (2) TFEU) but courts of last instance are also under an obligation to refer the question to the CJEU (Article 267 (3) TFEU). The latter means that any national court or tribunal against whose decisions there is no judicial remedy under national law is obliged as a court of last instance to refer a question of European Union law to the CJEU if it is relevant to the outcome of a pending case (see Case C 99/00 Lyckeskog [2002] ECR I 4839, paragraphs 14 et seq., Case C-210/06 Cartesio [2008] ECR I-9641, paragraphs 75 to 79).

However, if the CJEU has already dealt with the point of law in question or if the correct application of European Union law is obvious (acte claire) a reference is not necessary. It is up to the domestic court to assess this necessity. The parties to the proceedings cannot compel a reference nor does European Union law provide a remedy for failure to make a reference (see Case 283/81 Cilfit and Others [1982] ECR 3415, paragraphs 6 et seq).

For the presentation on "Preliminary reference procedure on interpretation and validity in the context of EU judicial protection in environmental matters" see the video podcast of Christoph Sobotta:

Lower courts have the power to refer questions on interpretation but they are not under any obligation to do so. Higher courts cannot limit this power if the lower court considers that a case pending before it requires a reference (see Case C-210/06 Cartesio [2008] ECR I-9641, paragraphs 88 to 98).

If there are well founded arguments before any national court for the invalidity of European Union law, it is incumbent upon it to stay proceedings and to make a reference to the Court for a preliminary ruling on the act’s validity. Domestic courts may never take a final decision in conflict with European Union law unless the CJEU has declared it invalid (see Case 314/85 Foto-Frost [1987] ECR 4199, C 461/03 Gaston Schul Douane-expediteur [2005] ECR I 10513, paragraphs 15 to 25, Case C-344/04 IATA and ELFAA [2006] ECR I-403, paragraphs 27 to 32).

The reference must include the legal and factual background of the domestic case as well as the questions of the national court. It should also indicate why the reply is considered necessary for the decision of the domestic case. The domestic court can also indicate its position on the questions of European Union law and propose a reply.

The reference will be translated into the 22 languages of the Court (23 as of 1 July). However, if the reference is longer than 20 pages of 1500 characters it is possible that it will only be translated into French, the working language of the CJEU, and summarised in the other languages.

The reference and the relevant translations or summaries will be sent to the parties before the domestic courts as well as to the interested parties mentioned in Article 23 of the statute of the CJEU, that is all member states, the Parliament, the Council and the Commission, as well as, in some cases the states of the EEA and the EFTA Surveillance Authority. They can submit observations in their own language with two months. The CJEU can convene a hearing.

In most but not all preliminary reference procedures there will be an opinion by an Advocate General that is published before the CJEU deliberates on the case. The CJEU can decide in chambers of three, five or fifteen judges as well as in plenary session. The judgment is translated into all 22 languages of the Court. However, if the Court decides by way of an order because the issues raised have already been addressed by earlier jurisprudence it is possible to limit the translation to the language of the domestic court.

The court can employ an accelerated procedure and – in certain areas – an even more accelerated urgent procedure. However, these procedures are used very rarely, and, up to now, have not been used in environmental cases. Normally, the CJEU expects the domestic courts to deal with any urgency by means of interim measures (see Order of 23 October 2009 in Case C-240/09 Lesoochranárske zoskupenie, paragraph 12).


Developed by the Academy of European Law (ERA)