The reference for a preliminary ruling
The reference for a preliminary ruling is a procedure exercised before the Court of Justice of the European Union. This procedure enables national courts to question the Court of Justice on the interpretation or validity of European law.
The reference for preliminary ruling forms part of the procedures which may be exercised before the Court of Justice of the European Union (CJEU). This procedure is open to all Member States’ national judges. They may refer a case already underway to the Court in order to question it on the interpretation or validity of European law.
In contrast to other judicial procedures, the reference of a preliminary ruling is therefore not a recourse taken against a European or national act, but a question presented on the application of European law.
The reference for a preliminary ruling thus promotes active cooperation between the national courts and the Court of Justice and the uniform application of European law throughout the EU.
Nature of references for a preliminary ruling
Any national court to which a dispute in which the application of a rule of European law raises questions (original case) has been submitted can decide to refer to the Court of Justice to resolve these questions. Therefore, there are two types of reference for a preliminary ruling:
- a reference for a ruling on the interpretation of the European instrument: the national judge requests the Court of Justice to clarify a point of interpretation of European law in order to be able to apply it correctly;
- a reference for a preliminary ruling on the validity of the European instrument: the national judge requests the Court of Justice to check the validity of an act of European law.
The reference for a preliminary ruling is therefore a reference "from one judge to another". Although a referral to the Court of Justice may be requested by one of the parties involved in the dispute, the decision to do so rests with the national court. In this respect, Article 267 of the Treaty on the Functioning of the EU specifies that national courts which act as a final resort, against whose decisions there is no judicial remedy, are obliged to exercise the reference for a preliminary ruling if one of the parties requests it. In contrast, national courts which are not a final resort are not obliged to exercise the reference for a preliminary ruling even if one of the parties requests it. In any case, all national courts must immediately refer a matter to the Court of Justice in cases of doubt regarding a European provision.
The Court of Justice therefore only gives a decision on the constituent elements of the reference for a preliminary ruling made to it. The national court therefore remains competent for the original case.
On principle, the Court of Justice must answer the question put to it. It cannot refuse to answer on the grounds that this response would be neither relevant nor timely as regards the original case. It can, however, refuse if the question does not fall within its sphere of competence.
Scope of preliminary rulings
The Court of Justice Decision has the force of res judicata. It is, furthermore, binding not only on the national court on whose initiative the reference for a preliminary ruling was made but also on all of the national courts of the Member States.
In the context of a reference for a preliminary ruling concerning validity, if the European instrument is declared invalid all of the instruments adopted based on it are also invalid. It then falls to the competent European institutions to adopt a new instrument to rectify the situation.
Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings [Official Journal C 338 of 6.11.2012].
- Website of the Court of Justice of the European Union.