ERA – Academy of European Law
“The anti-discrimination directives 2000/43 and 2000/78 in
practice”
Trier 15-16 march 2010
***
« The role of the national judge and the prelimary ruling
procedure »
(Daniele P. Domenicucci – Legal secretary, EU General Court)
The preliminary ruling system
Introduction (I)
• The preliminary ruling procedure is essential for the preservation of the EU
character of the law established by the Treaty and has the object of ensuring that
in all circumstances this law is the same in all MS of the EU
• Art. 267 has been of seminal importance for the development of EU law: it is
through preliminary rulings that ECJ has developed concepts such as “direct
effect” and “supremacy” of the EU law
6318 references for a preliminary ruling / 15562 cases (1953-2008)
767 cases pending as at 31.12.2008 / 396 references for preliminary ruling
• The preliminary ruling procedure is inspired by the national mechanism of
review of constitutionality
• Article 267 does not envisage contentious proceedings designed to resolve a
dispute, but prescribes a procedure whose aim is to ensure a uniform
interpretation of Community law by cooperation between the ECJ and the national
courts
• Cooperation between national courts and the ECJ: the ECJ judgement has a
preliminary nature, with reference to both its chronological scope and its
functional meaning
Introduction (II)
OBJECTIVS
 Ensure the utmost uniformity in the interpretation of the EU law and
establish for that purpose effective cooperation between the ECJ
and national courts
 Ensure the uniform application of the EU law
 Ensure an indirect way of testing validity of EU action for conformity
with EU law (often is the only mechanism whereby private applicants
may contest the legality of EU norms = i.e. enables challenges to
regulations via the national courts)
 Ensure an indirect way of ruling on compatibility of national law with
EU law
2. Subject-Matter of preliminary ruling (I)
Artt. 19, para. 3, (b), TEU e 267 TFEU :
The Court of Justice of the EU shall give preliminary rulings, at the
request of courts or tribunals of the MS, on the interpretation of Union
law or the validity of acts adopted by the institutions, bodies, offices or
agencies of the EU (not national acts!)
Preliminary ruling on interpretation
 Questions concerning the interpretaton of the Treaty and of any act
(including « atypical » acts) of institutions, bodies, offices or agencies of
the EU (secondary law)
Preliminary ruling on the « validity »
Questions concerning the validity and effectiveness of (only) secondary
law (that is, all act subject to appeal under Article 263 TFEU)
2. Subject-Matter of preliminary ruling (II)
Essential element: the existence of a question and the existence of a
real (non ficticious) conflicting interpretation (or a conflicting
assessment on the validity), relevant for the decision
Procedure “between court” (“from court/tribunal to Court”)
(the Court judgment provides the national court the legal principle for
the resolution of the dispute, facilitating him to resolve the
dispute)
2. Subject-Matter of preliminary ruling (III)
Preliminary ruling on the « validity »
Increased importance for private applicants because of the Court’s
narrow construction of the standing criteria under Art. 263 TFEU
(often is the only mechanism whereby private applicants may contest
the legality of EU norms)



The validity of all acts of EU Institutions, bodies, offices or agencies
of the EU may be reviewed in the context of a reference for a
preliminary ruling irrespective as to what they are called and whether
or not they have direct effect (even non-binding acts)
Individual acts : a natural or legal person (and MS) who undoubtedly
has the right under Art. 263 TFEU to seek the annulment of a EU act
may not plead the illegality of that act in subsequent proceedings
before the national courts
Acts excluded from review : the Treaties themselves ; all other rules
of constitutional rank ; the preliminary rulings themselves (but it does
not preclude the ECJ from ruling on the validity of the same act in a
later judgement)
3. The « court or tribunal of a member State » within the
meaning of Art. 267 TFEU
A body is a court or tribunal for the purposes of
the Art. 267 whether:
 It is established by law
 It is permanent
 Its jurisdiction is compulsory
 Its procedure is inter partes
 It applies rules of law
 It is independent
4. The court or tribunal of a MS (i) may request the Court to
give a ruling or (ii) shall bring the matter before the Court
(ratio)
National courts against whose
decisions a judicial remedy
exist (matter of national law)
The court or tribunal (of last
resort) against whose
decisions there is no judicial
remedy (highest courts; no
remedy available against the
decision of a lower court)
May request the Court to give
a ruling
Duty to make a preliminary
reference (limits)
5. Limits set to the duty to request a preliminary ruling
The courts are not obliged to refer to the ECJ a question concerning the
interpretation of EU Law [or the validity of an act of EU Law] raised before
them if :
 the question is not relevant (or identical with a question which has already
been the subject of a preliminary ruling in a similar case)
 the answer can be clearly deduced from the case-law, irrespective of the
nature of the proceedings which led to those decisions (“acte éclairé”
doctrine)
 the correct application of EU Law may be so obvious as to leave no scope
for any reasonable doubt as to the manner in which the question raised is
to be resolved (the national court must be convinced that the matter is
equally obvious to the courts of the other MS and to the ECJ (“acte clair”
doctrine) - (prevent from abusing the doctrine)
6. Obligation to request a preliminary ruling praeter legem:
invalidity of a EU act
ECJ, Case 314/85 Foto-Frost (Art. 267 TFEU has a
lacuna)
When a national courts not subject to the third para. of Art. 267
perceives that an act of a EU Institution is invalid, it may not make
such a finding itself, but
 must seek a preliminary ruling thereon from the ECJ
No obligation to request a preliminary ruling
 when it considers the validity of a EU act. In this case, it may
reject the grounds in support of invalidity and conclude that the
measure is completely valid
7. Enforcement of the obligation to request a preliminary ruling:
sanctions for non-compliance
No remedy available from the Court of Justice to
parties to the main proceedings against a refusal of
a court to make a preliminary reference...
..But, through its national court’s refusal to seek a
ruling, the MS has infringed Art. 267 TFEU :
• Infringement actions
• Claim for damages (Brasserie du pêcheur, 1991,
e Köbler, 2003)
8. Sharing of functions and cooperation between the national
court and the ECJ (I)
The ECJ does not assess the compatibility of national legislation
allegedly in breach with EU law. Instead, the ECJ provides the
national court with the EU legal principles which facilitate it to
assess such compatibility when deciding the main dispute.
“(EU law and, more particularly,) Article X of Directive 2000/78,
must be interpreted (as meaning that it does not preclude a
national measure) precluding a provision of domestic law, such as
that at issue in the main proceedings, which authorises/contains
(setting a maximum age for..)”
Preliminary ruling = indirect procedure on the compatibility of
national legislation with EU law (effects similar to to those of a
judgment under Article 258 TFEU)
8. Sharing of functions and cooperation between the
national court and the ECJ (II)
The ECJ does not assess the necessity or appropriateness of the
referral, nor the relevance of the question. It has nonetheless
declared inadmissible
 Manifestly irrelevant questions for the resolution of the procedure a
quo
 Purely hypothetical questions
 Questions within the context of a referral which does not provide
sufficient legal and factual background
 Questions raised within fictitious disputes
9. Effects of a preliminary ruling
PRELIMINARY RULING ON INTERPRETATION
 Binding on the national court (all courts and tribunals dealing ith
the case) – it does not preclude the court to which the judgement is
adressed (or another involved in deciding the case) from making a
further reference for a PR
 Outside the specific dispute : binding on other national courts and
administrations
PRELIMINARY RULING ON VALIDITY
 Scope limited to the case under evaluation – effect erga omnes of the
PR declaring an EU act invalid (declaration of invalidity = declaration of
nullity under Article 263 TFEU)
10. Temporal effects
 Ex tunc effects
the interpretation simply express what was
contained ab initio in the provisions and principles of EU law to
which it relates
 Limitation of temporal effects (general principle of legal certainty
inherent in the EU legal order = no reliance may be placed in the
provision as interpreted in order to support claims concerning
periods prior to the date of ECJ judgement, except in the case of
persons who have before that date brought the action before the
national court)
11. Procedure in the case of a reference for a preliminary ruling (I)
Written and (eventually) oral procedure
 Order for reference made by a national court
The written procedure
 Translation of the order for reference into the other official languages. The
Registrar of the Court notifies it to the parties to the main proceedings (i.e. all
parties to the case, including any interveners), the MS and the Commission
(notification to the Council or the ECB, if the act the validity or interpretation
of which is in dispute originates from one of them, to the EP and the Council,
if the act the validity or interpretation of which is in dispute was adopted
jointly by those institutions)
 Pubblication on the OJEU
 The parties to the main proceedings, the MS, the Commission and, where
appropriate, the EP, the Council and the ECB are entitled to submit written
observations (within 2 months of the notification of the order for reference +
10 days for the distance)
11. Procedure in the case of a reference for a preliminary ruling (II)
The oral procedure
 Hearing (language of the case: language of the court which made
the reference for a preliminary ruling)
 Advocate general (possible) Opinion
 Delivery of the judgment (order)
***
 The Court send its ruling to the national court
 National court’s final judgment (to be sent to the Court)
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Preliminary ruling on the

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