The Preliminary Ruling

Procedure: Revisiting the

Basics

Rajko Knez

Introduction & content

The PRP (Art. 267. TFEU) as a „jewel of the crown“ – main

characteristics

The objects and the role of the PRP

Different PRPs and when certain procedure applies

Types of Union law being suitable for the PRP

A development of a notion „Court“ in „Tribunal“

How and when to ask

National consequences in case of a lack of the PRP and beyond

Annual Report CJEU, 2015

6

Purposes of the PRP

uniform interpretation of the Union law (legal safety);

compliance of secondary Union law with primary Union law –question of the validity;

decentralized system of judicial remedies (especially in private law remedies)

a huge contribution to the development of the Union law:

for the EU substantial law;

for the relation among national legal systems and EU legal system at the one hand and with international legal system on the other hand;

almost all principles were developed by CJEU in PRP (Van Gend 26/62; Costa/ENEL 6/64; Francovich C-6,9/90, etc);

the concept of direct effect, direct applicability, consistent interpretation, state liability etc … the EU law get the foundations for the existence and effectiveness

a huge importance for the individual and its indirect access to the court - locus standi in direct access is very limited (Royal Scholten-Honig, 103/77).

Different PRPs and diff. speeds of the

procedures

Types of Preliminary Ruling procedure

Ordinary (267 TFEU, Art. 93 Rules of Procedure)

Urgent (Art. 107 RoP)

Expedited (Art. 105 RoP)

Simplified (Decision by reasoned order without taking further steps in the proceedings, Art. 53.2 & Reply by reasoned order, Art. 99 RoP)

Procedure without AG(Art. 20 Statute of the CJEU)

Impact of effectiveness of the procedures

speed

several procedural possibilities to end the procedure fast, but…

Annual Report CJEU, 2015

Types of EU law suitable for PRP

Treaties (TEU, TFEU)

International agreements

EU Charter of Fundamental Rights of the European Union

Secondary Law (Directives, Regulations, Decisions…)

To certain extent soft law

Provisions of Union law to which national law refers

Sometimes case of purely national maters is not allowed/sometimes it is – it

is the question of the applicability (ratione materiae) of the act in question

Notion – court and tribunal?THE EXPRESSION „COURT OR TRIBUNAL“ MAY IN CERTAIN CIRCUMSTANCES INCLUDE BODIES

OTHER THAN ORDINARY COURTS OF LAW:

Vaassen criteria (61/65):

The court/tribunal

it is established by law,

it is permanent,

its jurisdiction is compulsory and its decision also,

it has an inter partes (contentious) procedure,

it applies rules of law, and

it is independent

It performs judicial activity.

… But not all of them are applied verbatim all the time(AG v Coster, C-17/00).

C-689/13, Puligienica Facility Esco SpA (PFE)

N.B. te idea of Vassen criteria is to assure judicial decision and to enable, that way, PRP

About asking? This is a true question which makes judges busy…

National judge shall asses the relevance of the question (refer or not to refer…special issue presented by judge Dr. Dettmers)

The content of the question (Art. 94 RoP)

The question shall reflect in the decision, which will settle the dispute at national court

The relevance of the question shall be clearly visible from the decision of national court to refer, and the irrelevance from the judgement of the national court

When? Lord Denning M.R. put that simply: »The judge must have got to the stage when he says to himself: »This clause of the Treaty is capable of two or more meanings. If it means this, I give judgment for the plaintiff. If it means that, I give judgement for the defendant«. In short, the point must be such that, whichever way the point is decided, it is conclusive of the case. Nothing more remains but to give judgement.«

How to ask?

Main emphasis:

Scope of the EU law

No interpretation of national law

No application of the EU law

Nothing that refers to questionable res facti

No question on compatibility of national rules with Union law… usually, questions start with „… shall Art. X of (EU law) be interpreted…“

But there is no form; there is a wide range of situations in which PR is necessary and uniform approach is not possible

Question shall be formulated by having in mind the reference back to the national court

And the reply of the CJEU

This is also an issue how to define the question(s):

This is fully task of national court – not the parties (C-316/10, Danske

Svineproducenter)

SEU v Costa v E.N.E.L.:

iura novit curia is not a rule at the CJEU

CJEU often

Impacts of:

Complexity of res facti, complexity of legal qualification

Clear formulations of the referring courts (questions being too complex

formulated)

Impacts of the opinions of the EU Commission and intervenient

Politically sensitive questions (like case Grogan, C-333/13 Dano) – the

CJEU between Scylla and Charybdis

A change of the EU rule

If we would like to avoid reformulation of questions, the

approach would need to be much more formalistic and that

could mean (since iura novit curia is not a rule) more

responsibility on the referring court

The duty to request PRP

The courts of the last resort and ( in Costa, 6/64) other courts against which there is no

remedy

There are certain exceptions from „must“ (case C.I.L.F.I.T. from 1982):

the mere fact that there is a question of an interpretation does not mean that PRP is always

necessary at the courts of the last resort

even those courts has certain discretion

if the question is not relevant

Identical or similar question

acte clair

acte éclairé

Preater legem: The question of validity: obiter dictum

decision already in case E.N.E.L., and then in Foto

Frost, Gaston Schul – every court must, immediately.

Remedies in case of „missing“ PRP

National based – private law remedies

A regular appeal… also constitutional complaint (it is up to national legal system,

reason: competence, only CJEU is competent to interpret EU law)

State liability (from Frankovich, Köbler to case C-168/15, Milena Tomášová)

National based – public law remedies

Basically, none

EU and international based - private law remedies

PRP via national private law remedies

ECHR and Art. 6

EU and international based - public law remedies

Theoretically, Commission via Art. 258

ECtHR can deal with PR references

Similarly also in Schipani v Italy, ECtHR, 21.7.2015

Take home message

PRP is a developing legal institute (legislatively, acts

of the CJEU alone, CJEU jurisprudence… also

ECtHR)

The development in the last decade:

More types of the PRP procedure

More effectiveness (question of speed) in the PRPs

Still expressing trust to referring courts – how and when to

ask

A „duty to state reasons“ is emphasized by the ECtHR, but this might

also trigger more questions