5. Preliminary rulings

Question 1

legal basis

Answer 1

Article 267 TFEU

Question 2

purpose of the preliminary rulings

Answer 2

• interpretation of the Treaties (Art. 267 para 1a)

- review validity of acts of the institutions, bodies, offices or agencies of the Union (Art. 267 para 1b)

Question 3

who may or shall refer a preliminary question to the ECJ?

Answer 3

Art. 267 para 2:

• A court or tribunal
• of a MS
• if it considers that a decision on the question concerning the interpretation of EU law is necessary to enable it to give judgment
• a court or tribunal of first instance or appeal MAY (unless obliged)

Question 4

Can a Supreme Court of a MS request a preliminary ruling on validity of an act of an institution?

Answer 4

YES - it is an obligation of Supremen Court to refer

• Monopoly of the ECJ
• No acte claire doctrine

Question 5

Can a Supreme Court of a MS request a preliminary ruling on validity of a chapter of a Treaty

Answer 5

NO - you cannot refer a preliminary ruling on validity of primary law.

Question 6

Can a Supreme Court of a MS decides itself on validity of an act of an EU institution?

Answer 6

NO - it is an obligation of Supremen Court to refer

• Monopoly of the ECJ
• No acte claire doctrine

Question 7

Can a judge refuse to not request a preliminary ruling on interpretation of the Treaties?

Answer 7

YES

Unless there is no judicial remedy under national law (Art. 267 para 3)

Question 8

Is the judge obliged to request a preliminary ruling on interpretation of the Treaties?

Answer 8

YES if there is no judicial remedy under national law (Art. 267 para 3)
unless:
- identical question in substance
- well-establishes case law of the ECJ
- acte clair doctrine (Cilfit)

Question 9

Can a judge refer a preliminary ruling on interpretation of the Charter?

Answer 9

Yes, but only if the subject matter of the main proceedings is within the field of application of EU law. e.g. Ackerberg Franson

Question 10

Can a national judge refer a preliminary ruling on interpretation of the Title 5 of the TFEU?

Answer 10

NO - Article 275 TFEU excludes the application of CFSP title

Question 11

what can the preliminary reference on interpretation relate to?

Answer 11

1. Interpretation of the Treaties (primary law)
2. Interpretation of the acts adopted by institutions, bodies, offices, agencies (secondary law)
   - binding or not
   - mentioned in Art. 288 TFEU or not
   - with or without effect
   - unilateral or conventional

Question 12

Can a national judge refer a preliminary ruling on interpretation of a commercial agreement with Canada?

Answer 12

YES - conventional EU law as a part of EU law is accepted in preliminary rulings

Question 13

what can the preliminary reference on interpretation NOT relate to?

Answer 13

• public international law (unless and international treaty makes the ECJ competent)
• national law (unless the national law copies EU law)
• agreements between individuals (unless they refer to the content of EU rules)

Question 14

Can a national judge refer a preliminary ruling on interpretation of public international law?

Answer 14

NO, unless ECJ is made competent in the international treaty

Question 15

Can you ask for an urgent preliminary ruling on cases related to Title 5 of Part 3 TFEU?

Answer 15

YES - there is a possibility to have an urgent preliminary ruling procedure for all the cases related to title 5 of part 3 TFEU (Art. 105 et. 107 RPC) provided for in art. 267 para 4 persons in custody

Question 16

effects of the preliminary ruling on interpretation?

Answer 16

• The decision of the ECJ BINDS the national referring judge
• The other courts are bound by the RES IUDICATA rule, but may always refer their case
• The ECJ clarifies how EU law should be interpreted since its entry into force, therefore its judgement is retroactive. But the ECJ can limit this retroactivity (EXCEPTIONAL)

Question 17

when can the retroactivity be limited in the decision of preliminary ruling on interpretation?

Answer 17

• The ECJ clarifies how EU law should be interpreted since its entry into force, therefore its judgement is retroactive. But the ECJ can limit this retroactivity (EXCEPTIONAL), only
  • if a party makes a request
  • if there is a risk of serious economic repercussions
  • if the MS is in good faith

limitations of retroactivity:
Legros - serious economic repercussions if all taxes collected would be reimbursed
–> however, good faith of MS needed! case Lancry
C-437/97 Evangelischer Krankenhausverein - a municipal tax reimbursement would have caused serious economic repercussions

Question 18

Competence?

Answer 18

ONLY THE ECJ NOT THE GC
Article 256 (3)

Question 19

Can a national judge decide that an EU act is invalid?

Answer 19

NO - No national judge may ever decide that an EU act is invalid. Otherwise there would be no unity in EU law.

The judge of first instance or appeal has only the choice of

• applying the EU act whose validity is contested
• refer the question to the ECJ on the validity if he has a doubt;

Question 20

What is the difference for obligations of a Supreme Court judge in referring preliminary ruling on interpretation and on validity?

Answer 20

In preliminary ruling on validity of EU law, the obligation to refer remains for the Supreme Court (without any exception: no « acte clair » doctrine)

• Monopoly of the ECJ on judging upon the validity of EU acts (Foto-Frost)
• The monopoly is absolute (Case Schull)

Question 21

What can the national judge refer for preliminary ruling on validity?

Answer 21

Same thing except NO INTERPRETATION ON PRIMARY LAW
(Art. 267 para 1b)

Validity is possible to refer in secondary law

Question 22

Grounds on invalidity?

Answer 22

As the objective of the preliminary reference on validity is to check the validity of EU law, the grounds for invalidity are the same as the grounds for annulment (see action for annulment)

1. The source: a violation of EU law by an institution, a body, and agency
2. Objective to check the validity of an act
3. Monopoly of the Court of Justice: only the court of the general court can annul
4. grounds of invalidity are the same as the grounds for annulment
   o annulment = incompetence of the Union
   o essential procedural requirements
   o the infringement of the treaties or the rules of law relating to the application or misuse of powers
5. an action for annulment an a preliminary ruling on the validity cannot concern primary law

Question 23

Can you refer for a preliminary ruling on validity if the person objecting the validity of the act of the EU had a right to bring action for annulment?

Answer 23

NO - preliminary question will be inadmissible (TWD)

–> even if the person had contested the validity of the Commission decision before the expiry of the time (Marien Bitter) - Action for annulment has to be given

Question 24

Effect of declaration of invalidity

Answer 24

The declaration of invalidity stays in the legal order, but it is impossible to apply it.
(the act is declared invalid) binding for the national judge and the other judges
• art. 266 TFEU is applicable and the institution that is the author of the act must enforce the judgment
• art. 266(2) TFEU is applicable by analogy
• the declaration of invalidity is retroactive, but the ECJ can limit it (art. 264) (as an exception)
Remember: the preliminary reference on the validity has its source in an objection of illegality of an EU act which is raised before a national judge.

Question 25

Where is the mechanism of validity ruling based on?

Answer 25

Principle of COOPERATION and principle of HIERARCHY
Cooperation
o Objective procedure
o Procedure « de juge à juge » (from judge to judge): The national judge is the source of the procedure, not an applicant or a defendant but it’s a procedure from judge to judge.
o The national referring judge rules upon the case: the national judge will be finally deciding on the case with the help of COJ. The national judge is nonetheless responsible for the decision.
o There is no appeal before the ECJ against the decision of the national court. In fact, the preliminary reference to the COJ is not an appeal against the decision of the national judge. The COJ does not quash, annul nor replace the decision of the national judge.
o The national judge is not obliged to refer a question for the preliminary ruling

Hierarchy
–> to ensure the uniformity of EU law, you need some elements of hierarchy
o National courts of last instance are obliged to refer a question for the preliminary ruling under penalty of MS’s responsibility. The possibility of an infringement action as in the case of Commission v. France of 2018. And we have seen that in the preliminary reference on the validity, there is even no acte claire doctrine.
o The national judge cannot declare the invalidity of EU acts - monopoly of Court of Justice
o The ECJ’s decision is binding for the national referring judge and it is binding caselaw for the other judges of the EU

! COJ does not give an advisory opinion. That’s a decision, and this decision is binding not only for the national judge that referred the question. There is binding case law from the COJ, so it’s also binding on the other judges of EU. The other judges of the EU have always the possibility to refer their case to the court. Even the referring judge that received his answer of the COJ can find that this answer is not clear or does not give a useful answer for him.