Role of preliminary reference procedure
What is the Preliminary Reference Procedure?
Article 267 of the Treaty on the Functioning of the European Union (TFEU) provides the basis for the preliminary reference procedure. When a national court encounters a question regarding:
the interpretation of EU law, or
the validity of acts of EU institutions,
it can (or sometimes must) refer the question to the CJEU for a ruling. The decision of the CJEU then guides the national court in resolving the case before it.
Role of Preliminary Reference Procedure
Ensures Uniformity: It harmonizes the interpretation and application of EU law across member states.
Protects Individual Rights: National courts can obtain authoritative interpretation to safeguard rights under EU law.
Judicial Dialogue: Facilitates cooperation between national courts and the CJEU.
Development of EU Law: Helps develop and clarify EU law through case-by-case rulings.
Legal Certainty: Provides consistent legal guidance on EU law questions.
Key Elements:
Who can refer? Any national court or tribunal.
When is referral mandatory? Lower courts may have discretion, but courts of last instance (highest courts) must refer questions unless the answer is already clear.
Scope: Questions about the interpretation of EU treaties, regulations, directives, or the validity of EU acts.
Effect: The CJEU ruling is binding on the referring court.
Important Cases Explaining the Preliminary Reference Procedure
1. Case 26/62 Van Gend en Loos (1963)
Facts: A Dutch company imported chemicals from Germany and was charged customs duty under Dutch law. The company challenged the customs charge based on the Treaty of Rome provisions.
Role of Preliminary Reference: The Dutch court referred questions on whether EU treaty provisions could confer rights on individuals enforceable in national courts.
Holding: The CJEU held that EU law not only imposes obligations on member states but also confers rights on individuals which national courts must protect. This established the principle of direct effect.
Significance: This case emphasized the importance of the preliminary reference procedure in allowing national courts to ask about EU law rights and their enforceability.
2. Case 6/64 Costa v ENEL (1964)
Facts: An Italian citizen challenged the nationalization of the electricity industry based on EU law supremacy.
Role of Preliminary Reference: The Italian court asked the CJEU whether national law could override EU law.
Holding: The CJEU ruled that EU law has supremacy over conflicting national laws.
Significance: The preliminary reference procedure was pivotal for clarifying the hierarchy of legal norms between EU and national law.
3. Case C-283/81 CILFIT and Lanificio di Gavardo SpA v Ministry of Health (1982)
Facts: An Italian court of last instance faced a question about interpreting an EU regulation and whether it needed to refer it to the CJEU.
Role of Preliminary Reference: The question was whether the court must refer when the EU law is clear or the correct application is so obvious as to leave no scope for reasonable doubt.
Holding: The CJEU established the "acte clair" doctrine, allowing national courts not to refer if the correct interpretation is so obvious that there is no reasonable doubt.
Significance: This case refined the limits of the preliminary reference obligation for highest courts.
4. Case C-314/85 Foto-Frost v Hauptzollamt Lübeck-Ost (1987)
Facts: A question arose whether national courts could declare EU acts invalid.
Role of Preliminary Reference: The German court asked whether it had jurisdiction to annul an EU act.
Holding: The CJEU ruled that only the CJEU has the power to declare EU acts invalid.
Significance: This case clarified that preliminary references are the exclusive channel for validity challenges to EU acts, emphasizing the importance of the procedure.
5. Case C-106/77 Simmenthal II (1978)
Facts: An Italian court questioned the effect of national law conflicting with EU law.
Role of Preliminary Reference: The court asked about the application of EU law when national law conflicts.
Holding: The CJEU ruled that national courts must apply EU law immediately and disapply any conflicting national law, even if adopted later.
Significance: This ruling reinforced the direct effect and supremacy principles, further empowering national courts through the preliminary reference procedure.
Summary Table of Cases and Their Contributions
| Case | Year | Contribution |
|---|---|---|
| Van Gend en Loos | 1963 | Established direct effect of EU law |
| Costa v ENEL | 1964 | Established supremacy of EU law |
| CILFIT | 1982 | Defined "acte clair" doctrine limiting referral duty |
| Foto-Frost | 1987 | Only CJEU can declare EU acts invalid |
| Simmenthal II | 1978 | National courts must apply EU law over conflicting national law |
Conclusion
The preliminary reference procedure is a cornerstone of the EU judicial system. It provides a formal mechanism for national courts to seek authoritative interpretation and validity rulings from the CJEU, ensuring consistency and effectiveness of EU law. The CJEU’s case law has developed doctrines that guide when and how national courts should use this procedure, balancing judicial cooperation and legal certainty.
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