preliminary ruling essay

Preliminary reference procedure

The preliminary reference procedure, provided for in Article 267 of the Treaty on the Functioning of the European Union (TFEU), is an institutionalised mechanism of dialogue between the Court of Justice of the European Union (CJEU) and national courts. This dialogue serves three principal purposes. First of all, to provide national courts with assistance on questions regarding the interpretation of EU law. Secondly, to contribute to a uniform application of EU law across the Union. Thirdly, to create an additional mechanism – on top of the action for annulment of an EU act (set out in Article 263 TFEU) – for an ex post verification of the conformity of acts of the EU institutions with primary EU law (the Treaties and general principles of EU law). The scope of the preliminary reference procedure covers the entire body of EU law with the exclusion of acts under common foreign and security policy and certain limitations in the area of judicial and police cooperation in criminal matters. EU law does not have a doctrine of binding precedent such as that entertained in common law countries. Therefore, a judgment of the CJEU in a preliminary reference procedure is, strictly speaking, binding only on the national court that submitted the question, as well as on other courts in the same domestic procedure. Nonetheless, CJEU judgments interpreting EU law enjoy an authority similar to those of national supreme courts in civil law countries – national courts interpreting EU law should take them into account. Furthermore, if the CJEU decides that an act of the EU institutions is illegal, no national court may find to the contrary and consider that act legal. The decision whether to submit a preliminary reference to the CJEU rests with the national court concerned. However, if it is a court of last instance and a question of interpretation of EU law or the validity of an act of the EU institutions is necessary to decide a question before it, that court must submit a question. If it refrains from doing so, the Member State concerned may be held liable for a breach of EU law. This briefing is one in a series aimed at explaining the activities of the CJEU.

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Dive deeper into the niche but crucial aspect of European law , the preliminary ruling procedure. This in-depth exploration will shed light on the workings of the procedure within the contextual frame of EU law , emphasising its significance. Further, you'll gain insights into Article 267 TFEU and its role in expediting the preliminary ruling procedure. Criticisms surrounding it are also discussed, enabling you to form a well-rounded perspective. Lastly, guidance is offered on articulating these complex concepts effectively within an essay, providing a comprehensive understanding of the preliminary ruling procedure.

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What is the Preliminary ruling procedure in European Law?

Which courts are required to refer questions to the CJEU under Article 267 TFEU?

What is the purpose of the Article 267 TFEU preliminary ruling procedure?

What is the role of the European Court of Justice (ECJ) in the Preliminary ruling procedure?

What principle is highlighted by the Preliminary ruling procedure?

What are some of the criticisms around Article 267 TFEU and the preliminary ruling procedure?

What are some important functions of the Preliminary ruling procedure in EU law?

What legal authority does Article 267 of the Treaty on the Functioning of the European Union confer to the Court of Justice of the European Union?

What is Article 267 of TFEU, and what role does it play in the Preliminary Ruling Procedure?

What are some criticisms of the Preliminary Ruling Procedure as per the informative essay guide?

What is the significance of the Preliminary Ruling Procedure in the context of EU law?

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Understanding the Preliminary ruling procedure in European Law

You may be wondering, "what exactly is a preliminary ruling procedure?" Simply put, it applies to European law and is a process that is central to the harmonisation and consistent interpretation of law within the European Union.

The preliminary ruling procedure is a judicial means within the European Union whereby national courts refer queries about the interpretation or validity of EU law to the European Court of Justice (ECJ) to ensure its consistent application.

The use of the preliminary ruling procedure not only enhances legal unity but also maintains the integrity of EU laws, while settling potential disputes that arise from their various interpretations among Member States.

Exploring the Preliminary ruling procedure EU law

Preliminary ruling procedure in EU law is an essential tool in the legal landscape of the European Union. Let's delve further into how it operates.

The referring court in the Member State identifies an issue of EU law that requires interpretation or validity confirmation during a national case.

The issue/question is then referred to the European Court of Justice (ECJ), which is the highest court in the EU system.

The ECJ reviews the issue and makes a ruling which binds the referring court and all courts in all EU Member States concerning the interpretation or validity of the law in question.

How does the preliminary ruling procedure work?

Understanding how the preliminary ruling procedure works is key to grasping its immense impact on European law and the interactions between national and EU legislatures.

Let's take an illustrative case. Suppose during a case in a German court, a point of EU law arises which is unclear and has potential implications for the case outcome. The German court pauses the case temporarily and refers the undecided legal point to the ECJ. After the ECJ clarifies that particular point of law, the German court resumes its case, applying the clarified point of EU law, which helped to solve the legality issue.

This process highlights the principle of 'primacy of EU law' in which EU law takes precedence over national law when the two stand in conflict.

Importance of preliminary ruling procedure in EU law

The importance of the preliminary ruling procedure in EU law cannot be overstated. It equips national courts with the necessary tools and guidance needed to apply and interpret EU law within their jurisdiction accurately.

Thus, preliminary ruling procedure plays a central role in maintaining the smooth functioning of EU legal system .

Delving into Article 267 TFEU and Preliminary ruling procedure

Article 267 of the Treaty on the Functioning of the European Union (TFEU), often known as the 'preliminary rulings article', forms the legal basis for the preliminary ruling procedure. It outlines the conditions under which this procedure is to be implemented.

Article 267 TFEU confers upon the Court of Justice of the European Union (CJEU), the exclusive authority to interpret EU law. National courts may, and sometimes must, refer questions of EU law to the CJEU to ensure accuracy and uniformity in its application across the EU.

Comprehending Article 267 TFEU preliminary ruling procedure

By further understanding Article 267 TFEU, you get a clearer picture of how the preliminary ruling procedure functions and its importance in the context of EU legislative order.

Firstly, it's crucial to note that Article 267 doesn't require all national courts to refer questions to the CJEU - only courts or tribunals against whose decisions there is no judicial remedy under national law.

Secondly, the intent behind the procedure is to ensure the uniform interpretation and application of EU law across all Member States, thereby enhancing their legal integration.

Thirdly, it's worth noting that asylum cases, as well as cases concerning visa and immigration regulations, can go through an expedited preliminary ruling procedure.

For example, if a British court is handling a case concerning an EU directive, but the interpretation of that directive isn’t unambiguous, the court can, or if in the final instance, must, halt proceedings and refer the matter for a preliminary ruling to the CJEU. This ruling will then provide the court with guidance on how EU law should be interpreted in this context. Furthermore, this interpretation will be binding across all EU member states to avoid diverging interpretations that could lead to inconsistency.

The role of Article 267 in expedited preliminary ruling procedure

In certain urgent matters, particularly those involving the Area of Freedom, Security and Justice (AFSJ), an expedited preliminary ruling procedure can be employed. Here's how Article 267 plays its part in it:

The referral to the CJEU happens in the regular manner as outlined in Article 267 TFEU. However, the CJEU recognises the urgency of certain matters and could review them within an expedited timeframe.

This process is especially useful in cases of asylum law, immigration, and visa regulation to ensure swift justice while not compromising on the application of EU law.

Criticisms and Debates around Article 267 TFEU and preliminary ruling procedure

While it's commonly accepted that Article 267 TFEU has played a key role in maintaining legal coherence in EU law, some criticisms and debates merit consideration .

One such debate concerns the length of the procedure as it can often lead to significant delays in national proceedings. Despite the possibility of expedited proceedings, critics argue that the CJEU's workload has resulted in untenable waiting periods.

There is also concern about the lack of clarity on when a court has a discretionary power versus an obligation to refer to the CJEU, which can lead to inconsistencies in seeking preliminary rulings.

Another critique lies in the interpretation of 'a court or tribunal' as defined by the European Court of Justice, with some critics considering it unduly broad.

Nevertheless, these discussions underscore the complex engagement between national legal systems and the overarching EU legislative order, and, arguably, enunciate the dynamic nature of the broader field of EU jurisprudence.

Writing on Preliminary ruling procedure: Informative Essay Guide

When delving into the topic of the preliminary ruling procedure as an essay topic, a comprehensive understanding of several crucial point is required. Remember, an informative essay is meant to educate your reader, so it's necessary to present each section in a clear, concise manner, backed with supporting facts. Let's navigate through the important sections for your essay.

Key points to consider in a Preliminary ruling procedure essay

Writing an essay on the preliminary ruling procedure requires clarity, specificity and a structured approach. This section presents some core areas to focus on in your essay.

Understand and clearly explain the concept of the Preliminary Ruling Procedure in the context of EU law. Include its meaning, purpose and tangible examples to help illustrate the concept.

Discuss, in depth, Article 267 of TFEU, its purpose and its role in the Preliminary Ruling Procedure. Remember to explain how Article 267 shapes and controls the process of referring questions to the CJEU.

Explore the different scenarios in which a Preliminary Ruling Procedure is used. These can range from clarifying ambiguities to resolving legal inconsistencies.

Highlight previous cases or relevant examples that drew upon the Preliminary Ruling Procedure. This might involve the use of judgements by ECJ concerning the interpretation of EU laws.

Discuss the criticism and debate surrounding the Preliminary Ruling Procedure and Article 267 TFEU. By so doing, you demonstrate a balanced understanding of the topic.

Incorporating criticism of Preliminary ruling procedure in your essay

Critiques of the Preliminary Ruling Procedure and Article 267 TFEU form an essential part of your essay. Incorporating critics' perspectives shows that you have examined the topic from various angles and have a comprehensive understanding of the subject matter.

Discuss the viewpoint on the length of the Preliminary Ruling Procedure. Critics argue that it often tends to be time-consuming and may delay national legal proceedings.

Include the criticism about the potential inconsistencies among national courts regarding seeking preliminary rulings, due to the lack of clarity on when a court must refer to the CJEU.

Address concerns regarding the definition of 'a court or tribunal' as interpreted by the CJEU in the context of Preliminary Ruling Procedure.

For instance, you could evaluate the critique that the ambiguity in the term 'court or tribunal' leads to confusion and potential misuse. This argument could be bolstered by citing examples where the classification of a body as a 'court or tribunal' has come into question.

Highlighting the significance of preliminary ruling procedure in your essay

Recognising the importance of the Preliminary Ruling Procedure in the context of EU law broadens the depth of your essay. This significance isn’t just confined to the resolution of legal discrepancies but extends to the harmonisation of laws across the Member States and preservation of EU law's supremacy.

The Preliminary Ruling Procedure is a key mechanism under EU law, aimed at ensuring that EU legislation is interpreted and enforced consistently across all Member States. The preliminary ruling by the CJEU has binding force not just on the national court that raised the question, but on all courts in the EU, thereby ensuring a unified interpretation and application of EU law.

Include the following key points to emphasise its importance:

Uniform application of EU law: The procedure ensures that EU law is interpreted and applied consistently by courts in all Member States.

Maintenance of EU law supremacy: The procedure helps secure the 'primacy' of EU law by allowing the CJEU to guide national courts on matters of EU law interpretation.

Resolution of legal uncertainties: Preliminary rulings by the CJEU can help clarify doubts and resolve controversies in the interpretation of EU laws, thereby promoting certainty and stability in EU's legal system .

Ultimately, emphasising the Preliminary Ruling Procedure's significance provides your reader with a fuller understanding of its integral role within the EU legal system.

Preliminary ruling procedure - Key takeaways

• The preliminary ruling procedure is a process in European law that aids in harmonising and consistently interpreting law within the European Union.
• The procedure works through national courts referring questions about the interpretation or validity of EU law to the European Court of Justice to ensure its uniform application.
• In relation to Article 267 TFEU, it provides the legal basis for the preliminary ruling procedure and grants the Court of Justice the exclusive right to interpret EU law.
• Article 267 TFEU only requires courts, against whose decisions there are no judicial remedies, to refer issues of EU law to the Court of Justice — this further ensures the uniform interpretation of EU law across Member States.
• In an essay context, it's important to understand and explain the concept of the procedure, discuss Article 267 TFEU and its role, explore different scenarios where the procedure is used, incorporate criticisms, and highlight the significance of the preliminary ruling procedure in maintaining the smooth functioning of the EU legal system.

Flashcards in Preliminary ruling procedure 12

It is a judicial process where national courts refer questions about the interpretation or validity of EU law to the European Court of Justice (ECJ) for a consistent application.

Only courts or tribunals against whose decisions there is no judicial remedy under national law are required to refer questions to the CJEU.

The procedure ensures the uniform interpretation and application of EU law across all Member States, to enhance legal integration.

The ECJ reviews the issue/question referred and makes a binding ruling on all courts in all EU Member States concerning the interpretation or validity of the law in question.

The principle of 'primacy of EU law' is highlighted, where EU law takes precedence over national laws when there is a conflict.

Criticisms include the significant delays it can cause in national proceedings, a lack of clarity on when a court must refer to the CJEU, and debates around the broad interpretation of 'a court or tribunal'.

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Article 267 TFEU and the Overwhelming of the CJEU

Electives: Commercial Part 1 – Competition

Commercial 2 – Intellectual Property

Article 267 of the Treaty on the Functioning of the European Union (TFEU), and the preliminary ruling procedure it provides for, have a critical impact on the harmonious development of EU law and the way in which national and EU legal systems interact and communicate. It is considered ‘by far the most important aspect of the judicial system of the Community’[1]. The procedure has provided a platform for the Court of Justice of the European Union (CJEU) to deliver seminal constitutional decisions that define the relationship between the EU and member states. On the other hand, it has been argued that the use of Article 267 has been overextended in a number of ways, for example, by pushing the boundaries of the type of bodies which can refer. This can lead to low quality rulings due to an overwhelming of the Court. The main purpose of the preliminary ruling procedure is ‘to prevent the occurrence within the Community of divergences in judicial decisions on questions of Community law’, ensuring uniform interpretation of EU legal provisions across the 27 member states. As more than 50 per cent of the CJEU’s workload, it has brought a host of issues which the CJEU may not have had the opportunity to consider otherwise. It has allowed the court to develop fundamental principles of EU law, including direct effect, supremacy, indirect effect (i.e. the interpretation of national law in line with directives) and member state liability for breach of EU law.

…it has been argued that the use of Article 267 has been overextended in a number of ways.

One of CJEU’s key judgments was handed down in Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 00001, which was the result of a preliminary ruling. It establishes the doctrine of direct effect: provided certain criteria are satisfied, an EU provision may give rise to a right which is enforceable by individuals in the national courts. The judges reasoned that if the intention of the founding member states was that individuals would not be able to invoke the Treaty before national courts, Article 267 TFEU would be meaningless. Although there is a close link between direct effect and supremacy, the latter was not affirmed by the CJEU until Case 6/64 Flaminio Costa v ENEL [1964] ECR 585, also the result of a preliminary ruling. Presented as a challenge to the Court’s jurisdiction, the case encouraged it to formulate the supremacy principle: due to its special and original nature, Union law cannot be overridden by any domestic provision, however framed. The Court’s most convincing argument was the effet utile : if member states accept legal duties at international level, they should be prepared to allow the translation of those duties into daily practice, by means of judicial and other elements. Moreover, the principle of supremacy is essential to the uniformity of the EU legal edifice. The justifications of the fundamental principles of direct effect and supremacy are therefore close to the purpose of Article 267 and there is clear mutual dependence between preliminary rulings and the two principles[2].

However, the CJEU’s broad interpretation of how Article 267 itself can be used often leads to an overwhelming of the Court, increasing the time for the Court to answer the preliminary ruling to over 24 months in some cases. The type of bodies which can refer are a factor largely within the CJEU’s control. Although the Court has consistently refused to accept references from arbitration tribunals or administrative authorities not determining legal disputes, it has taken a broad, purposive approach of what constitutes a court or tribunal. The body referring a case must have a statutory origin and it must be permanent. It must also include an inter-partes procedure, have compulsory jurisdiction and it must apply the rule of law. These criteria were affirmed in Case C-17/00 De Coster v Collège des Bourgmestre et Échevins de Watermael-Boitsfort [2001] ECR I-9445.

…the CJEU must be careful to stay on the side of interpretation.

Under Article 267(3), there is an obligation to refer a case concerning a question of EU law by any national court or tribunal against whose decision there is no judicial remedy. The CJEU favours the concrete theory, meaning that Article 267(3) would apply to the highest court in a particular case. An example is in the case of Costa v ENEL , where the defendant had no right to appeal further at national level because the sum of money in dispute was too small. A preliminary ruling was therefore made as the national court had no further judicial remedy for the defendant

…the preliminary ruling procedure is essential to the uniformity of the Union, allowing the CJEU to develop and clarify key principles.

Nevertheless, despite the wording of Article 267(3), in Case 283/81 CILFIT v Ministry of Health [1982] ECR 3415, the CJEU held that when a provision is so clear as to leave no scope for reasonable doubt, the last instance national court or tribunal has a discretion as any other national court or tribunal to refer a case. Known as the doctrine of acte clair , it has amended the Treaty obligation on courts of final instance to refer. In a large number of cases it is difficult to draw the line between the functions of the CJEU and national courts, where the answer to the preliminary ruling effectively determines the issue, leaving no role for the national court.

In Case 32/75 Fiorini (née Cristini) v Société Nationale des Chemins de Fer Francais [1975] ECR 1085, where the question before the Court was whether a discounted rail ticket amounted to a social or tax advantage, it was held that the discount did amount to such an advantage, despite the CJEU stating that it could not decide the case itself. Therefore, the national court could only acknowledge the judgment of the CJEU and enforce it, rather than actually apply the interpretation of the law. As the Advocate-General in Costa v ENEL stated, there is a fine line between interpretation and application and the CJEU must be careful to stay on the side of interpretation.

In conclusion, the preliminary ruling procedure is essential to the uniformity of the Union, allowing the CJEU to develop and clarify key principles constructing the legal system of the European Union. Nevertheless, broad interpretation of what constitutes a court and tribunal and the increasing number of discretionary and mandatory references further expands the scope of the procedure. The continuous growth of referrals under Article 267 leads to an overwhelming of the Court. According to JHH Weiler[3], this may lead to the risk of lower quality rulings and the dilution of the normative effect of the rulings when the Court deals more with details than overseeing the development of Union law in a smaller number of important cases.

[1] Francis Geoffrey Jacobs and Andrew Durand (Butterworth Publishers Ltd, 1975) References to the European Court , pg. iii. Quoted by Anderson and Demetriou, pg. 24.

[2] Andreas Norberg (2005) ‘Preliminary rulings and the co-operation between national and European Courts’ (2006) University of Lund, 16.

[3] J.H.H. Weiler, ‘The European Court, National Courts and References for Preliminary Rulings — The Paradox of Success: A Revisionist View of Article 177 EEC’, in Henry G. Schermers, C.W.A. Timmermans, and A.E. Kellerman (eds), ARTICLE 177 EEC: EXPERIENCES AND PROBLEMS (Amsterdam: North-Holland, 1987) 368-369.

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Fordham International Law Journal

Home > ILJ > Vol. 18 > Iss. 2 (1994)

The Role and Mechanism of the Preliminary Ruling Procedure

Carl Otto Lenz

This Article examines the preliminary ruling procedure, by far the most important procedure for legal practitioners and courts. Because Community law, by reason of its supremacy and direct effect, impacts relationships between individuals, Member State courts are asking the Court to decide Community law questions more frequently. Although the law to be applied in these cases is the same in all Member States, there is a potential danger to the functioning of the EC legal system as a whole if the law is not applied uniformly in the Member States. The founding fathers of the Community averted this situation by conferring upon the Court of Justice a monopoly of interpretation on questions of Community law.

Recommended Citation

Carl Otto Lenz, The Role and Mechanism of the Preliminary Ruling Procedure , 18 F ordham I nt'l L.J. 388 (1994). Available at: https://ir.lawnet.fordham.edu/ilj/vol18/iss2/2

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Article 267 TFEU, critically consider whether the relationship between the CJEU and national courts created by the preliminary reference procedure is better considered as a bilateral, horizontal partnership of collaboration or one which is a multilateral, vertical, hierarchical relationship in which the CJEU takes precedence.

Introduction

Introduced as the “jewel in the Crown of the ECJ’s” jurisdiction, 1 the preliminary rulings procedure contained within article 267 of the Treaty on the Functioning of the European Union (‘TFEU’) amounts to a fundamental tool to the application of EU law in Member States. The aim of this essay is to critically assess the preliminary rulings / reference procedure conferred under article 267 of the TFEU and conclude whether the scope of the relationship confers excessive powers on the ECJ with particular consideration to how it has changed over time. It is concluded that it cannot be agreed with absolute completeness that the European judicial system has moved from a horizontal bilateral approach to the vertical and multilateral approach. However, a proper consideration demonstrates that the development of matters such as the doctrine of precedent have shifted the matter towards a more vertical and multilateral approach. To a certain extent, the fact that national courts are not compelled to send a matter to the ECJ for a preliminary hearing is largely restrictive of the ECJ’s ambit and this prevents it from rising to a fully vertical position. 

Article 267 TFEU

Article 267 provides:

“Article 267 (ex Article 234 TEC)

The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;

Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision  on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.

Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.

If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay.” 

It has been stated that the preliminary rulings procedure has two purposes. Firstly, it is designed to ensure or foster the uniform application of European law within Member States. 2 A second reason as to why the EU has developed the preliminary rulings procedure is to ensure that Member States and their national courts have a source to turn to in the event that they are unclear as to the manner in which European legislation should be applied. 3

As Craig and De Burca explain, the original aim of preliminary rulings and the original structure was in fact a horizontal one in that the ECJ and nationals courts had differing functions in the sense that the national courts could elect when to refer and the ECJ then had to determine the question that was asked – the ECJ was thus not designed as a traditional appellate court and instead worked in collaboration with the national courts of Member States. 4 The relationship was deemed bilateral in the sense that it was between the ECJ and the individual court and when a question was asked the answer was to be handed to the individual national court. 5 However, it has been argued that the relationship has become one which has gradually transformed into a vertical and multilateral one. 6 The learned authors claim that the ECJ has claimed a position at the “apex” of the hierarchy and the national courts are not enforcers as far as the ECJ is concerned. 7 Furthermore, the scholars continue to argue that when a question is answered by the ECJ as it currently stands  the answer that is provided is one which has “ de jure” or “ de facto” impacts on the other national courts as opposed to being limited to the referring court.

This paper will proceed to consider several key aspects of the preliminary rulings procedure to analyse whether the relationship has moved from a horizontal bilateral structure to a vertical multilateral one.

The obligation to refer

One valid point that can be made in the context of the supremacy or hierarchical position of the ECJ is in relation to the times at which it can be called upon the provide an answer. To this end, it is has been argued that a great deal of power remains vested in the national courts as they are the ones that decide whether or not a matter should be referred to the ECJ. According to Mancini and Keeling, the ECJ and its jurisdiction is totally dependent on the “goodwill” of national courts to refer cases to it in the event that a question arises. 8 This principle was also emphasised by Rasmussen who noted that the ECJ had no power to force a national court to accept its jurisdiction and refer a question. 9

The starting position to any consideration in this context must be article 267 itself. In line with this, it is worth noting that the article itself provides that a national court with such a question has a discretion as to whether or not it refers to questions to the ECJ. The only circumstance in which there is a steadfast rule that requires a question to be referred can be found in the context of a court against whose decision there is no national remedy. On the one hand, one could be forgiven for arguing that the obligation to refer is such that the horizontal effect is instead replaced by one which is vertical in nature. It is submitted that, whilst this may be the case, there is a sensible rationale behind it. The ECJ has held that one of the reasons why there is a  requirement for the highest and un-appealable courts to refer cases is to prevent that the exhaustion of appeal rights being a reason to develop laws which are contrary to the EU legal system. 10

It is submitted that the lack of any requirement to refer a question to the ECJ suggests that the vertical element has not completely replaced the horizontal nature of the preliminary proceedings as such.

However, one factor that should be born in mind is that a Member State cannot avoid the requirement to refer by attempting to claim that the body in question was not a court. It has been held in a number of cases, including Politi, 11 that the determination as to whether an entity is a court or tribunal is a decision that is to be made by the ECJ and a classification by the Member State will not alone suffice to determine the duty to refer.

The question that must be asked of a supranational entity like the ECJ is of the consequences of a failure to refer a matter to the ECJ in circumstances where it would appear that there is an obligation to do so. The ECJ has held in the case of Köbler that where a court of last instance misapplies the law of the EU it can be made liable to make good the damages that accrue as a result of its failure. 12 This principle has been confirmed explicitly in the context of article 267 in the case of Traghetti. 13 On the fact of it, this would suggest that the fear of having to pay damages places pressure on the national courts to comply with the requirements under article 267. However, it is submitted that this may not be the case. It has been argued by Valutyte that this in fact causes a problem. 14 What the law in cases like Traghetti and Köbler does is to simply make the Member State liable in monetary terms; there is no  requirement that the national court also make the referral and thus it can continue to refuse to refer the question and simply pay the damages. It is considered that this in facts creates a problem in the law whereby individuals can be deprived of access to the ECJ by the simply payment of damages. 15 It is further considered that this allows Member States to buy their way out of a proper application of the law.

In light of the above, it is submitted that the requirement to refer a ruling is narrow, and narrowed further by the acte claire doctrine discussed below. As such, there are fundamental doubts which follow about the claim that the ECJ has taken a vertical strength given its reliance on national courts for referrals.

The acte claire doctrine

One further consideration in this case should be the acte claire doctrine. The doctrine itself, as established in the case of CILFIT, 16 is the legal principle that where a provision of the law is clear and free of ambiguity there is no requirement for it to be referred to the ECJ. This doctrine has been criticised as suggesting that the discretion that has been garnered by the national courts has led to situations in which the national courts have, arguably wrongly, formed their own view as to how EU law should be applied and have used the acte claire doctrine as a justification for not referring the case to the ECJ. 17 Scholars have not been the only ones to criticise the doctrine. In his opinion in the case of Lyckeskog, 18 Advocate General Tizzano argued that against a highly subjective test for the acte claire doctrine to be invoked. Significantly, despite the concerns over the acte claire doctrine being too subjective, calls to narrow its scope by including the requirement that the law  is obvious to non-judicial actors has before the requirement to make a reference falls away has been disregarded by the ECJ. 19

In light of the current discretion that is conferred upon national courts, this author maintains that the acte claire doctrine, at the least, prevents there from being a surge of the ECJ to the very apex of the hierarchy.

However, it can be argued the introduction of precedents to EU case law has worked to elevate the ECJ to a level not before known in a manner than reduces the horizontal and bilateral nature and instead adopts a vertical and multilateral approach. 20

The doctrine of precedents was first adopted in the case of Da Casta en Schaake 21 in which it was held that there is no need, especially for a court of last instance where there is no national appeal mechanism, to refer a case to the ECJ in circumstances where the ECJ has already decided upon the issues. This case has, in effect, created a doctrine of precedents which means that the answers that are given by the ECJ to one court are binding on the national courts of Member States. The principle of precedents was cemented by the ECJ in the case of International Chemical Corporation v Amministrazione delle Finanze dello Stato 22

It is submitted that this move towards precedents is justified. As Raitio notes, the doctrine of precedents in this regard is the proper and efficient way of ensuring that EU law is applied in a uniform manner. 23 The alternative option,  as Craig and De Burca note, 24 is one that does not sit well in reality and would involve the ECJ being compelled to hear each question again, regardless of the fact it had heard it before, only to reach the same conclusion. In such instances, it is considered the doctrine of precedents is thus vital to encouraging efficient and cost-effective decision-making.

The problem, however, may perhaps lie in the scope of the doctrine of precedents. The case law has allowed for a decision to be relied upon despite the fact that it is not derived from the same set of proceedings and also despite the fact that it is not derived from the same type of question. 25 On the one hand, it could be argued that this gives national courts the ability to manipulate precedents in order to prevent there being a further referral.

The doctrine of precedents plainly provides the ECJ with a wider ambit and amounts to a shift from the bilateral relationship to a more multilateral one.

Sectoral Devolution of responsibility

The sectoral devolution of responsibility is a further factor that must be considered as part of the consideration of the power and scope of the European judicial system in the context of national courts. As Craig and De Burca note, that devolution in this matter is appropriate in the context that giving certain powers to national courts ensures that enforcement can occur. The point to be noted is that the ECJ may have the kudos and the image to make rulings, but the enforcement element of the decision is best placed with those whom have the resources to carry out such enforcement. 26 As such, it is plain that the principle of having European precedents and the ability of the ECJ to devolve such responsibilities is indicative of a power imbalance / shift between the ECJ and the national courts. 

The impact of a preliminary ruling

What must be remembered in all these circumstances is that despite the scope of the ECJ to create precedents and other measures which may point to multilateralism and the vertical effect, the truth remains that the ECJ cannot determine the validity of the national law and this, therefore, remains a matter entirely for the national court following the answer having been given. However, in reality, political and social pressure is likely to be placed on national courts to apply the answer.

The Reality

It should briefly be added that despite the suggestion that the national courts have a discretion as to whether or not they refer a matter to the ECJ, the ECJ has seemingly been put under stress by the number of referrals that are sent to it under article 267. 27 As can be inferred from the authors’ words, the policy consideration behind this is not to increase the power of the ECJ but instead to try and reduce the number of referrals that are sent to the ECJ without doing harm to the policy aim of ensuring that EU law is applied in a uniform and consistent manner and indeed this is vital for the purpose of legal certainty. 28

Calls for reform

Whilst it falls outside the strict ambit of this paper, a discussion on the transformation of the role of the European judiciary would be incomplete without a consideration of the potential reforms that could come into place. There has been a consideration of the potential of turning the European judiciary into an appellate system. 29 However, it is notable that these reforms  were proposed in vague terminology 30 in 1999 and there appear to have been no substantial talks of such reforms going ahead over a decade on. If, hypothetically speaking, the ECJ were transformed into an appellate court, there is a strong chance that the impact of this would indeed make the ECJ arguably the strongest and most powerful court in the world and amount a full move from the horizontal to a vertical relationship.

The preliminary ruling mechanism conferred under article 267 of the TFEU is a vital mechanism to the uniform application of the law of the European Union. Indeed, without it, national courts would be left to their own devices as far as interpretation is concerned and this could lead to chaos and inconsistency. The mechanism does, on paper, have limitations in the sense that the ECJ is not, for the purposes of article 267, an appellate court and thus cannot rule on the legality of national laws. The role of the ECJ, therefore, was simply intended to be one of interpretation. This mechanism, as it then stood, drew a bilateral and horizontal picture where equality between courts based on their different functions was appreciated and it was regarded that the answer that was given by the ECJ to the requesting court was simply a matter between that individual national court and the ECJ. However, Craig and De Burca have championed the opinion that the ECJ has moved on somewhat from the original bilateral approach that it had adopted and what has instead emerged, by virtue of the case law, is a more multilateral and vertical approach. The significance of this alleged shift is that, if true, it delineates a shift from judicial equality to a shift to power on the part of the ECJ and the extension of the impact of the answers provided as part of the preliminary ruling procedure.

Based on the evidence that has been derived from the case law and commentary and discussed above, it is clear that there has been some shift towards a more multilateral procedure that is vertical in nature, but the shift cannot be considered complete or absolute. It is considered that the national   courts still retain some power in the sense of that it is they who have the ability to refer the cases to the ECJ; the ECJ cannot demand that a case be referred and the procedures in place to “compel” a national court to make a reference are somewhat diluted in their impact and thus the power and discretion remains comfortably with national courts. However, the reality would suggest that this finding is limit in practical impact given the high number of referrals that are being made to the ECJ. However, other factors indicate a shift towards the multilateral and vertical model that Craig and De Burca identify. To this end, it is notable that shifts have meant that the introduction of the doctrine of precedents places a wide ambit on the powers of the ECJ in a manner that amounts to devolution of responsibility to national courts.

1 Paul Craig and Gráinne de Búrca, EU Law: Texts, Cases and Materials, (Oxford University Press, 2011), 442.

2   Rheinmühlen-Düsseldorf v Einfuhr- und Vorratsstelle für Getreide und Futtermittel   (Case 166/73)[1974].

3   Ian Bache   et al, Politics in the European Union,   (Oxford University Press, 2014), 293.

4   Craig, P. and De Burca, G.   op cit,   443.  

5   Ibid.

6   Ibid.

7  Ibid.

8  G Federico Mancini and David Keeling, ‘From CILFIT to ERT: the Constitutional Challenge Facing Europe’ (1991) 11  Yearbook of European Law,  1.

9  Hjalte Rasmussen, ‘The European Court’s  Acte Claire  Strategy in  CILFIT’  (1984) 9  European Law Review  242. 

10  Case C-393/98  Ministerio Publico and Gomes Valenta v Fazenda Publica  [2001] ECR I-1327, paragraphs 17-18.

11  Case 43/71  Politi v Italy  [1971] ECR 1039.

12  Case 224/01,  Köbler v Austria  [2003] ECR I-10239.

13  Case C-173/03  Traghetti del Mediterraneo SpA v Repubblicaitaliana  [2006] ECR I- 1209. 

14  Regina Valutyte, ‘State Liability for the Infringement of the Obligation to Refer for a Preliminary Ruling under the European Convention on Human Rights’ (2012) 19(1)  Jurisprudence  7, 8-9.

15  Ibid,  8.

16  Case 283/81  Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health  [1982] ECR 3415.

17  Anthony Arnull, ‘The Use and Abuse of Article 177’ (1989)  Modern Law Review  622, 626. 

18  Case C-99/00  Lyckeskog  [2002] ECR I-4839, Opinion of Attorney General Tizzano at I-4841.

19  Case 495/03  Intermodal Transports BV v Staatssecretaris van Financien  [2005] ECR I-8151.

20  Craig, P. and De Burca, G.  op cit,  456.

21  Cases C-28-30/62  Da Costa en Schaake  (163) ECR 31. 

22 Case C-66/80 International Chemical Corporation v Amministrazione delle Finanze dello Stato [1981] ECR 1191.

23 Juha Raitio, The Principle of Legal Certainty in EC Law, (Springer Science & Business Media, 2003), 88.

24 Craig, P. and De Burca, G. op cit, 449.

25 Case 283/81 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health [1982] ECR 3415.

26 Craig, P. and De Burca, G. op cit, 477.

27 Lorna Woods and Phillips Watson, Steiner and Woods on EU Law, (Oxford University Press, 2014), 245.

29 The Future of the Judicial System of the European Union (Proposals and Reflections) (May 1999).

30 Paul Craig, ‘The Jurisdiction of the Community Courts Reconsidered’ (2001) 36 Texas International Law Journal 555, 576. 

Note: The article was written pre-Brexit and hence does not reflect the post-Brexit changes in the UK National Courts. 

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6 Preliminary References as a Means for Enforcing EU Law

• Published: March 2017
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This chapter examines to what extent and how the preliminary reference procedure provided in Article 267 TFEU can be used as a means for private parties to enforce EU law against the Member States. The procedure enables national courts to apply to the Court of Justice to obtain a ruling on the interpretation or validity of an EU legal act. It has in fact become a highly important means for private parties’ enforcement of EU law. Today, the preliminary reference procedure has attained such importance as an enforcement measure that the prospect of a reference to the Court of Justice can of itself induce a Member State party to proceedings before a national court to settle the dispute. Indeed, the preliminary reference procedure is sometimes referred to as ‘indirect enforcement’.

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Preliminary ruling proceedings – recommendations to national courts

Summary of:.

Recommendations to national courts on the use of the preliminary ruling procedure

Article 267 of the Treaty on the Functioning of the European Union

Article 19 of the Treaty on European Union

WHAT IS THE AIM OF THE RECOMMENDATIONS AND OF ARTICLE 267 OF THE TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION AND ARTICLE 19(3) OF THE TREATY ON EUROPEAN UNION?

The 2019 recommendations:

• explain to courts and tribunals in the European Union (EU) Member States the purposes of a procedure that entitles them, under Article 267 of the Treaty on the Functioning of the European Union and Article 19(3)(b) of the Treaty on European Union, to refer to the Court of Justice of the European Union (CJEU) for a preliminary ruling * ;
• set out the scope of the procedure and the form in which national courts should submit their referral;
• supplement Articles 93 to 118 of the CJEU’s rules of procedure (further details in the summary );
• replace previous recommendations issued in 2018.

Significance of the preliminary ruling procedure

This procedure is considered useful when, in a case before a national court, a question of interpretation that is new and of general interest for the uniform application of EU law is raised, or where the existing case-law does not appear to give the necessary guidance to deal with a new legal situation.

Structure of the recommendations

A set of recommendations applies to all requests for a preliminary ruling and a further set specifically applies to expedited procedures * or urgent procedures * .

Who makes the request for a preliminary ruling?

The national court or tribunal before which a dispute is brought takes sole responsibility for determining both the need for a request for a preliminary ruling and the relevance of the questions it submits to the CJEU.

Courts submitting a referral should, among other things:

• be established by law and be permanent;
• have compulsory jurisdiction;
• apply the rules of law; and
• be independent.

Subject matter and scope

• Importantly, a referral must concern the interpretation or validity of EU law . It must not concern the interpretation of national law nor issues of fact raised in the main proceedings.
• The CJEU may only give a ruling if EU law applies to the case in the main proceedings .
• The CJEU does not itself apply EU law to a dispute brought by a referring court, as its role is to help resolve it; the role of the national court is to draw conclusions from the CJEU’s ruling.
• Preliminary rulings are binding both on the referring court and on all courts in Member States .

Interaction between the reference for a preliminary ruling and the national proceedings

• A referral should be made as soon as it is clear that a CJEU ruling is necessary for a national court to give judgment and when it is able to define in sufficient detail the legal and factual context of the case and the legal issues that it raises.
• The national proceedings must be suspended until the CJEU has given its ruling.
• The referring court must inform the CJEU of any procedural step that may affect the referral and, in particular, of any discontinuance or withdrawal, or of any amicable settlement of the dispute in the main proceedings, and of any other event leading to the termination of the proceedings. It must also inform the CJEU of any decision delivered in the context of an appeal against the order for reference and of the consequences of that decision for the request for a preliminary ruling.

Form and content of the referral

• The referral must be drafted simply, clearly and precisely given that it will need to be translated to allow other Member States to submit their observations.
• Article 94 of the CJEU’s rules of procedure specifies the content of the request that should accompany the referring court’s questions, the essential points of which are summarised in the annex to the recommendations. If one or more of these requirements are not met, the CJEU may find it necessary to decline jurisdiction to give a preliminary ruling on the questions referred or dismiss the request for a preliminary ruling as inadmissible.
• The referring court may briefly set out the main arguments of the parties to the main proceedings. However, it should be noted that only the request for a preliminary ruling will be translated, not any annexes to that request.
• The referring court may also briefly state its view on the answer to be given to the questions referred for a preliminary ruling. That information may be useful to the CJEU, particularly where it is called upon to give a preliminary ruling in an expedited or urgent procedure.
• The questions referred to the CJEU for a preliminary ruling must appear in a separate and clearly identified section of the order for reference, preferably at the beginning or the end. It must be possible to understand them on their own terms, without it being necessary to refer to the statement of the grounds for the request.
• The request for a preliminary ruling must be in typewritten form and the pages and paragraphs of the order for reference must be numbered.

Data protection and anonymisation of the request for a preliminary ruling

• To ensure optimal protection of personal data in the CJEU’s handling of the case, the referring court is invited to anonymise the case by replacing the names of individuals referred to in the request , for example using initials or a combination of letters, and by editing out information that might enable them to be identified.

Transmission to the CJEU of the request for a preliminary ruling

• All referrals must be dated, signed and sent electronically or by post to the CJEU’s registry in Luxembourg.
• The CJEU recommends that national courts and tribunals use the e-Curia application .
• The request for a preliminary ruling must reach the registry together with all the relevant documents and documents useful for the CJEU’s handling of the case and, in particular, the precise contact details for the parties to the main proceedings and their representatives, if any, along with the file of the case in the main proceedings or a copy of it.

Costs and legal aid

• Preliminary ruling proceedings before the CJEU are free of charge.
• The referring court rules on the costs incurred by the parties, where necessary.
• If a party to the main proceedings has insufficient means, the CJEU may grant that party legal aid to cover the costs, particularly those in respect of its representation, which it incurs before the CJEU. That aid can, however, be granted only if the party in question is not already receiving aid under national rules or to the extent to which that aid does not cover, or covers only partly, costs incurred before the CJEU.

Role of the CJEU registry

• The registry liaises with the referring court during the proceedings and sends it copies of all procedural documents and requests for information.
• At the end of the proceedings, the registry sends the CJEU’s decision to the referring court. The referring court should keep the registry informed of any action taken and of its final decision in the case.

Expedited and urgent referrals

• Under Articles 105–114 of its rules of procedure, the CJEU may decide that some referrals should be handled by means of expedited or urgent procedures .
• Deadlines are shorter, for example, the time allowed for Member States to submit observations in the case of expedited referrals.
• The referring court must justify the urgency , pointing out the potential risks in following the ordinary procedure.
• Requests for an expedited or urgent procedure should be sent by means of the e-Curia application or by email .

FROM WHEN DO THE RECOMMENDATIONS APPLY?

They have applied since 8 November 2019.

For further information, see:

• Court of Justice procedures (Court of Justice)
• Urgent preliminary ruling procedure and expedited procedure – factsheet (Court of Justice of the European Union).
• where a decision is necessary for a national court to give judgment; or
• where there is no judicial remedy under national law.

MAIN DOCUMENTS

Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (OJ C 439, 25.11.2016, pp. 1–8).

Consolidated version of the Treaty on the Functioning of the European Union – Part Six – Institutional and financial provisions – Title I – Institutional provisions – Chapter 1 – The institutions – Section 5 – The Court of Justice of the European Union – Article 267 (ex-Article 234 TEC) (OJ C 202, 7.6.2016, p. 164).

Consolidated version of the Treaty on European Union – Title III – Provisions on the institutions – Article 19 (OJ C 202, 7.6.2016, p. 27).

RELATED DOCUMENTS

Rules of Procedure of the Court of Justice (OJ L 265, 29.9.2012, pp. 1–42).

Amendment of the Rules of Procedure of the Court of Justice (OJ L 173, 26.6.2013, p. 65).

last update 26.04.2022

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PRELIMINARY REFERENCE

Foundations:

Art. 267 TFEU : CJEU has jurisdiction to give preliminary reference on: (a) “ interpretation of the Treaties ”; (b) “ the validity and interpretation of acts of the institutions … of the EU.” National courts must make a reference “if it considers that a decision on the question [of the interpretation of EU law] is necessary”

The PR procedure has allowed the ECJ to shape the relationship between itself and the national courts; developing doctrines such as direct effect, supremacy, and fundamental rights.

It is a reference system not an appeals system: CJEU interprets EU law , while national courts apply it (although the line can be very thin). Because the ECJ does not have to decide the law on the facts of a given case, it has had scope to use PR to develop broad constitutional principles.

PR and standing: the standing of all national courts to make a PR can compensate the narrow standing rules for an individual to directly challenge an EU act under Art. 263.

Relationship between ECJ and national courts under Art. 267 PR allows for dialogue between the ECJ and national courts. Relationship was originally horizontal and bilateral ; however, CJEU has used Art. 267 to develop a more hierarchical, multi-lateral relationship: ECJ is superior to national courts ( Foglia ) and the CJEU’s decisions are increasingly held to be binding on all national courts of all MS, not just the one which made the reference ( International Chemical Corp ).

Questions which can be referred: the CJEU can rule on the interpretation of the Treaties and EU secondary legislation. A PR can be made regarding national law which implements EU law as long as the national act has a sufficient connection with EU law.

Courts / Tribunals which can refer:

What is a court / tribunal? For the ECJ to decide the categorisation under national law is not conclusive. E.g. in Broekmeulen an Appeals Committee for GPs was held be a court, even though it wasn’t under Dutch law (relevant factors: adversarial procedure, legal representation, gave final decisions).

Obligation / discretion to refer: most national courts have a discretion to refer issues of interpretation to the CJEU where necessary, but a national court “against whose decisions there is no judicial remedy ” has an obligation to refer. What counts as ‘no judicial remedy’?

Abstract theory: bodies whose decisions are never subject to appeal (e.g. UKSC).

Concrete theory: key question is whether the court’s decision is subject to appeal in the type of case in question. ECJ took this approach in Costa v ENEL (magistrate’s decisions were capable of being appealed, but there was no right of appeal in the present case —magistrate was treated as being a court from which there is no judicial remedy).

If a national court of last resort breaches Art. 267 duty to refer, state may be liable under Kobler .

Preliminary rulings and legal certainty:

ECJ’s rulings on interpretation take effect at the time the law entered force, not the time of the judgment —so interpretation applies to legal relationships before the ruling was given.

This has implications for the finality of national courts decisions —e.g. where a national court gave the law one interpretation in a case in which a PR was not made, that is subsequently incompatible with a later decision of the ECJ.

Kühne & Heitz [2004] establishes that the importance of loyal cooperation under the Treaty requires national courts to reopen final decisions, but only where it is possible to do so under national law.

The effect of precedent is to shift the relationship between the national courts and the ECJ to a vertical hierarchy with multilateral relationships .

National courts have no obligation to make a reference . Court can decide a reference is not needed because an issue has already been resolved , or there is no doubt as to the validity of an act.

If an issue has been resolved, the ECJ will just restate their previous judgment:

Costa v ENEL : Art. 267: national courts can formally make a reference where the ECJ has previously decided the question referred, but ECJ will generally restate the previous judgment.

Thus a statement could be made formally, but it must raise a new argument / factor or the substance will just be repeated. This shifts the relationship between national and EU courts from bilateral (rulings only of relevance to the national court that requested them) to multilateral (ECJ rulings have an impact on all national courts).

The Costa principle has been developed by the ECJ in later cases —an ECJ ruling can be relied upon even if: (i) the issue arose in a different type of proceedings ; (ii) questions were not identical :

CILFIT [1982] : Italian court sought a preliminary ruling on whether it was exempt from its Art. 267 duty to refer if the answer to the preliminary reference question was obvious. CJEU: ECJ’s rulings are authoritative in situations where the point of law is the same , even though the questions posed in earlier cases were different and even though the types of legal proceedings in which the issue arose differed.

To refer a materially identical question “ may deprive the obligation of its purpose and thus empty it of its substance ”

CILFIT encourages national courts to rely on the ECJ’s prior rulings where the substance of the legal point has already been adjudicated— effectively using them as precedents for national courts.

International Chemical Corporation [1981] : although a preliminary ruling is primarily directed to the national court which made the reference, it should be relied on by other national courts before which the matter arises . ECJ rulings have a multilateral effect and precedential impact .

Analysis: development of precedent:

Largely inevitable —the original bilateral conception (ECJ’s rulings only relevant for the national court that requested them) was unrealistic — the ECJ would be forced to hear matters it had already resolved, wasting time and...

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Preliminary Reference

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Preliminary Ruling/References

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⇒ Most cases arrive before the court through the preliminary rulings/references procedure

⇒ Its purpose is to secure uniformity in the EU legal order (Futtermittel (No 1) [1974])

Principle of cooperation between the European Union and Member States

⇒ CILFIT Case [1982]: Preliminary rulings are another example of Article 4(3) → principle of sincere cooperation between the EU and the Member States

Dialogue between Courts

⇒ Court said there should be a real and fruitful collaboration between the courts of the Member States and CJEU: they are partners in the development of EU law (Robert Bosch case)

⇒ Preliminary reference is NOT an appeal → It is NOT an hierarchical relationship

• So this principle of judicial autonomy is intended to create a relationship of equality and dialogue between the courts.

⇒ A shared jurisdiction between the EU and the Member States.

⇒ National Courts are the primary enforcers of EU law. Hence why they are called preliminary rulings i.e. they precede the application of EU law by the national court.

• If the national court is not satisfied with ECJ’s answer it can Ping-Pong questions and answers with them i.e. they can engage in a discussion/dialogue/partnership (Munich University case [1991])

What can be referred?

⇒ Article 267: CJEU has jurisdiction to give preliminary rulings concerning:

• (a) The interpretation of the Treaties ;
• (b) The validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;

⇒ So questions relating to the TEU, TFEU, Charter AND questions relating to secondary law can be referred e.g. regulations, directives etc.

• The ability to refer questions regarding recommendations was seen in the case of Grimaldi [1989]

⇒ Only the ECJ can rule on the validity of EU law (Foto-Frost v Hauptzollamt [1987]) – this means, therefore, Member States cannot!

⇒ The CJEU CANNOT consider questions of national law under Artispanle 267

How does it Work?

⇒ The national court refers questions regarding the interpretation of EU Law to the CJEU and the CJEU answers those questions in abstract form .

⇒ National courts then apply those answers to the particular problem they have before them, with matters of procedure being for national courts (Comet [1976] and Rewe [1976]), but this is subject to 2 things:

• 1) EU Law claims must not be treated less favourably than national claims; and,
• 2) There must be an effective remedy for the enforcement of EU law (Article 19 TFEU)
• Member States are therefore required to provide sufficient domestic remedies to ensure EU law is effective e.g. the Factortame case concerned the availability of interim relief against the Crown which historically hadn’t been available in our domestic law

The Nature of Rulings

⇒ This is not an appeal procedure because:

• It is not up to parties to invoke it (national court just gets interpretative help)
• The CJEU does not concern itself with the facts, just the abstract point of law (Van Gend en Loos [1964])
• The CJEU does not rule on the validity of national law (Van Gend en Loos [1964])

⇒ Binding effect?

• Does have binding effect on the referring courts (Benedetti v Munari [1977]), but does NOT bind the parties to the proceedings
• The common law view is that the rulings are de facto precedence on all courts in MS – the law is uniform and to be consistent. This fits in nicely with the doctrine of acte clair
• The civilian approach is that rulings/references don’t create new authority, they merely clarify the law – so this is a declaratory approach to the cases
• It is the second rule (civilian rule) that, not surprisingly given antecedence of the Court of Justice, it inclines to
• Amministrazione delle Finanze v San Giorgio [1980] → in preliminary references the court “clarifies and defines where necessary the meaning and scope of that rule as it must be or ought to have been understood and applied from the time of its coming into force.”

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Who? Definition of a Court/Tribunal

⇒ Any court or tribunal within the legal system of the Member State is qualified to refer questions under Article 267

⇒ Dorsch [1977] lists useful criteria as to what a court/tribunal is:

• A “tribunal” is established by law; it is permanent; it has an adversarial procedure; it applies the Rule of Law; it is independent and impartial
• The jurisdiction of a “tribunal” is compulsory

⇒ The following tribunals have been allowed to ask for a preliminary ruling:

• Administrative tribunal (Van Gend en Loos [1964])
• Appeals Committee for General Medicine (Broekmeulen v Huisarts [‘81])
• BUT not: Tribunal established by contract (Nordsee v Reederei Mond [1982])

⇒ Preliminary rulings can be sought by all courts in Member States, not just the most superior court (Rheinmuhlen case [1974])

Discretion or Obligation to Refer

⇒ The court/tribunal may, if it considers a decision on a question necessary to enable it to give judgment, request the CJEU to give a ruling thereon (Art 267(2) TFEU)

⇒ A flexible approach to preliminary rulings is taken by the CJEU → when and how it decides to refer a question is entirely up to the national court (Irish Creamery Milk suppliers v Gov of Ireland [1981])

• BUT: If the validity of an EU provision/act is at stake, there is an obligation to refer (Foto Frost [1987])

⇒ However, if the case is pending before a court/tribunal of a Member State against whose decisions there is no judicial remedy under national law (e.g. the Supreme Court (UK)), that court/tribunal shall bring the matter before the CJEU – Art 267(3) TFEU

⇒ The purpose of Article 267(3) is to prevent the emergence of a body of national law not in accordance with EU law (Hoffman-La Roche v Centrafarm [1977])

Can CJEU Refuse to Hear a Reference?

⇒ YES the CJEU has the discretion to refuse to hear a preliminary reference. It will refuse to hear a reference in the following situations:

• Clear lack of jurisdiction, i.e. purely internal matter having nothing to do with the EU (Hermes Hitel 2012)
• Contrived cases, i.e. no real dispute between the parties (Foglia v Novello (No 1) [1980] and No 2 [1981])
• Where the case is hypothetical (Borker [1980)
• Where the question is irrelevant to the actual case (CILFIT [1982])
• When the court cannot understand the referred question (Telemarsicabruzzo v Circostel [1993])
• Where there is not enough information (FRBSB [2000])
• Where the national court asks about the validity of judgments of the CJEU (Wünsche v Germany [1986])
• When the CJEU has already answered the question (Da Costa [1963])
• Correct interpretation is so obvious as to leave no scope for reasonable doubt (known as acte clair ) (CILFIT [1982])
• Proceedings already terminated in the national court (Pardini [1988])

Answer of the CJEU

⇒ The CJEU answers on a point of law and not on the facts, although it does so at times (Stoke on Trent and Norwich City Councils v B&Q [1992])

⇒ The CJEU doesn’t explain whether the national law conflicts with EU law but provides an explanation of the EU law that necessarily implies national law conflicts or not

The effect of a ruling

⇒ Binding on national court that sent the question and on all courts in all EU States (ICC v Amministrazione delle Finanze [1981])

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Preliminary Ruling and Court of Last Instance: Do the EU’s ‘CILFIT’ Criteria Need to be Revisited?

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1. Introduction

1.1 Overview

On April 15, 2021, European Court of Justice (CJEU) Advocate General (AG) Michal Bobek presented his Opinion on the case Consorzio Italian Management and Catania Multiservizi [1] , proposing that the CJEU revisit its “ CILFIT ” criteria [2] – particularly the acte clair doctrine – and replace them with three new cumulative requirements, which, he argued, would better achieve the purpose and scope of Article 267 of the Treaty on the Functioning of the European Union (TFEU).

1.2 The proceeding before the Italian Council of State ( Consiglio di Stato )

By judgment no. 1297, delivered March 22, 2017, the Italian Council of State ( Consiglio di Stato ) referred a first request for preliminary ruling to the CJEU, pursuant to Article 267 TFEU, concerning both the interpretation and validity of certain EU Law provisions [3] . The particular feature of the proceeding consisted in the fact that the Council of State had already made a preliminary ruling on the same case, defined by the CJEU in its judgment dated April 19, 2018 [4] .

In that ruling, the CJEU stated that EU law did not preclude the interpretation provided by Italian law on procurement [5] . The applicants, however, argued that the CJEU had not taken into account certain aspects of the case in point and argued, for that reason, that the judgment was “ unusable for the definition of the case ”. The Council of State was therefore asked to make a new referral for preliminary ruling, presenting five “ further ” questions to the CJEU for examination [6] .

The Administrative Judge noted that three of these questions (two and in part, another) should be declared clearly unfounded , as they had already been resolved by the judgment issued by the CJEU on April 19, 2018. However, since the two remaining questions raised new issues of contrast with EU Law , they must be qualified as “ new ” issues, according to the Administrative Judge.

Thus, with its judgment released on July 15, 2019, the Council of State deemed it necessary to refer a second request for preliminary ruling limited to the two new questions , pursuant to the established EU case law that imposes on the Court of last instance the obligation to refer the case back. Before submitting the two questions on the merits, however, the Council of State asked the CJEU a first and preliminary question regarding the actual scope of the provision under art. 267(3) TFEU [7] .

The Council of State stated that the mandatory nature of the preliminary ruling could not be separated from a regime of “ procedural preclusions ” , considering that a “chain” of preliminary questions would have generated the risk of abuse of trial, making the right to judicial protection and to a swift conclusion of the trial elusive [8] .

Now, this first and preliminary question regarding the boundaries of the duty provided for by Article 267(3) TFEU, constitutes the heart of Bobek’s Opinion: in fact, the AG does not consider the merits of the two “ new ” questions, but focuses his attention only on the first question, ranging as far as the identification of a “ deeper layer ”, with the declared aim of questioning the criteria of the CILFIT case law.

2. Boundaries of the duty of referral under article 267, third paragraph, TFEU

2.1 A broader issue

According to the AG, a broader issue emerges from the preliminary question raised by the Council of State. It must be asked, in fact, whether:

• any and all cases in which there are lingering doubts as to the correct application of EU Law in that particular case are covered by the duty of referral for a preliminary ruling, regardless of whether or not a previous request for a preliminary ruling in the same case has already been made; and, in particular
• the precise scope of the duty to refer a question for a preliminary ruling and the exceptions to such obligation.

After an initial reading, argues AG Bobek, the answer is easily found in established CJEU case law, which Bobek himself summarized with the principle: “ it is always for the national court to decide ”. In fact, although the referring court may, in principle, give relevance to the views of the parties regarding the opportunity to refer a question for a preliminary ruling, Article 267 TFEU instituted a direct cooperation between the CJEU and the national courts by means of a procedure, which is completely independent of any initiative by the parties; while on the other hand, even though the wish of the CJEU is to assist the referring court in the broadest possible way, the national court remains the body that can better determine whether a preliminary ruling is necessary.

Thus, a request for preliminary ruling could , in principle, be made at any stage of the proceedings and irrespective of the existence of an earlier preliminary ruling by the CJEU in the same proceedings.

Conversely, the CJEU, on numerous occasions has relied on its own interpretive authority in the context of one of its judgments and claimed that such authority may deprive a court of last instance of the duty to refer the matter. However, on the other hand, the Council of State, in its order of July 15, 2019, clarified that some of the questions proposed by the parties constituted new questions and, therefore, as such, said it would be unlikely to violate CJEU precedent.

Thus, in the opinion of the AG, the complexity underlying the question posed by the Italian Administrative Judge calls for a broader reflection on the nature and scope of the duty to raise a preliminary question: the core of the problem would lie in the inadequacy of the criteria identified by CILFIT case law, the exception of the acte clair in particular.

2.2 The position of the governments involved in the case. Some outline notes.

The governments of the Member States involved have adopted diverse positions.

Firstly, while the Italian and French Governments identified certain aspects of the CILFIT criteria which could be improved, the German Government, in line with the Commission, believed that there was no particular reason to revisit CILFIT in any way, since such exceptions had already been in place for 40 years.

The Italian Government stressed the need to better balance the obligation of preliminary ruling and the principle of the proper administration of justice, arguing that there would be a breach of the third paragraph of Article 267 TFEU only where the referring court failed to state reasons for its decision not to make a ruling.

Lastly, the French Government suggested that the CILFIT criteria be revisited in light of the overall purpose of Article 267 TFEU and in consideration of the current state of EU Law, by ensuring that the criterion focus on issues that may give rise to divergent interpretations within the Union, rather than on individual cases within Member States.

2.3 The duty of referral for preliminary ruling under article 267, third paragraph, TFEU. The case law exceptions: CILFIT judgment

Before exploring the heart of the matter, following is a brief review of the content of Article 267 TFEU, which establishes the CJEU’s jurisdiction to give preliminary rulings on the interpretation and validity of the Treaties, and the criteria developed by the CILFIT judgment.

Article 267, third paragraph, specifies that if a question is raised before a court or tribunal of a Member State “ against whose decisions there is no judicial remedy under national law ”, that court or tribunal has not only the “ possibility ” but the “ duty ” to bring the matter before the CJEU. The rationale behind this provision is to establish a duty to make a reference for a preliminary ruling, whenever the context in which the exception is raised represents the last chance to clarify a certain question of interpretation [9] .

The Treaty, therefore, outlines a categorical duty on the courts of last resort without exception .

With the CILFIT judgment, however, such duty provided for in Article 267 has less clear contours: the CJEU identified three exceptions to this obligation. The judge is not required to refer the case when:

• the question raised is irrelevant, as it can in no way affect the outcome of the case; or
• the community provision in question has already been interpreted by the CJEU (doctrine of the acte éclairé ); or
• the correct application of Community Law is so obvious as to leave no room for any reasonable doubt as to the manner in which the question raised is to be resolved (doctrine of acte clair ).

With reference to the latter criterion, the CJEU has specified that, before reaching this conclusion, the national court or tribunal “ must be convinced ” that the matter is equally obvious to the courts of the other Member States and to the CJEU. Furthermore, the interpretation of a provision of Community Law also compares the different language versions and diverse legal concepts adopted by the Member States; moreover, a provision must be placed in its context and interpreted in the light of the European law as a whole.

As an initial step, it is fundamental to distinguish the two levels on which the obligation and the exceptions to this obligation stand: (a) on the one hand, the duty of referral for the court of last instance is provided for within the Treaty; and (b) on the other hand, the exceptions to this duty represent a case law creation.

3. The limitations of the CILFIT criteria according to AG Bobek

3.1 The three dichotomies highlighted by AG Bobek

What is the exact scope of the obligation to make a request for a preliminary ruling and the exceptions to this obligation? In this regard, the AG highlights three dichotomies:

• between “ objective” and “ subjective ”, between structural / systematic reasoning and attention to the case in question;
• between interpretation and application of European Union law; and
• the contrast between differences in interpretation within a Member State and within the European Union .

3.2 First dichotomy: Hoffmann-La Roche versus the CILFIT judgment

Bobek argues that the exceptions established in the CILFIT case are conceptually problematic and inconsistent with the obligation provided for in Art. 267(3) TFEU, with which they should comply. In other words, the CILFIT criteria lack clarity as to whether they are subjective or objective in nature with regard to the existence of a ' reasonable doubt ' : is it a doubt which arises in the individual judge with specific reference to the case in question ( subjective doubt ) or, conversely, must it be interpreted as a doubt which takes account of objective circumstances ( objective doubt )?

According to AG Bobek, this contrast is particularly evident when comparing CILFIT with the Hoffmann-La Roche judgment [10] . In the latter, the CJEU stated that the underlying structural reason for the obligation contained in Art. 267(3) TFEU is to prevent the establishment of national case law in a Member State which is in conflict with EU law. The rationale of the provision, therefore, is to avoid divergences of case law within the EU. Obviously, this assumption is objective in nature, since it focuses on case law in general and not on the case at hand.

On the contrary, the logic dictated by the CILFIT exceptions, and in particular the acte clair criterion, would be focused on the individual case and on subjective doubts within the same procedure: regarding the alleged lack of feasibility of the criteria, AG Bobek argues that they are affected by “a good dose of subjectivism that cannot be ascertained and cannot be reviewed”, since they require judges to “develop the belief” that the evidence of reasonable doubt is also imposed on the courts of other Member States and on the CJEU [11] .

3.3 Second dichotomy: interpretation and application of EU Law

From the first dichotomy comes the dividing line between interpretation and application of EU law . If the obligation under Art. 267(3) TFEU concerned the application of EU law rather than its interpretation, it would be difficult to identify the boundary between the CJEU’s duty and that of the national courts.

If, on the other hand, the objectives specified in Hoffmann-La Roche were indeed pursued, the emphasis would be on uniform interpretation , not correct application . The two aspects differ, since the interpretation of an EU provision is related to its scope and purpose ; in contrast, its application consists in the subsumption of specific facts within a definition . In other words, interpretation aims at extending within the EU an unambiguous interpretation of its rules by case law; while application, on the other hand, is related to the correctness of the outcome of the individual case.

3.4 Third dichotomy: differences in interpretation within a Member State and within the European Union

The practice following the CILFIT judgment regarding the application of the criteria, continues the AG, is inconsistent: differences in interpretation can be found both within a Member State and across the EU. This variation in the criteria’s application results in different outcomes. Such differences, within a Member State and, even further, throughout the European Union , should be avoided: this reason alone would justify an intervention of the CJEU’s Grand Chamber.

Analysis of the three dichotomies shows that the emphasis with respect to the referral obligation should change: from there being “ no subjective reasonable doubt as to the correct application of EU law in respect of the outcome of the specific case ” to “ an objective divergence detected in the case law at national level thereby threating the uniform interpretation of EU law within the European Union ” [12] .

3.5 The alleged lack of feasibility of the acte clair doctrine with reference to its objective elements

AG Bobek not only criticizes the acte clair doctrine with regard to its subjective elements but also challenges its objective components, in particular insofar as it requires the comparison of the different language versions of EU provisions.

Bobek observes that this requirement lacks feasibility and has also been previously criticized by other Advocates General, in that it demands from the national judge a disproportionate amount of effort (rarely made by the CJEU itself). In particular, Bobek argues that, while the acte clair doctrine suffers from heavy subjectivism, even the elements enunciated in objective terms are tricky, as they are simply “ unattainable ” [13] .

3.6 No specific EU law remedy available to the parties to enforce a violation of Article 267, (3) TFEU

The AG also argued that there is no specific EU Law remedy available to the parties if they believe that their right to have a matter submitted to the CJEU under Article 267 (3) TFEU has been infringed. However, two potential remedies include:

• invoking the civil liability of a Member State where the breach of EU law derives from a decision of a court of last instance (as stated in Köbler ), [14] or
• the opening by the Commission, possibly as a result of a complaint, of an infringement procedure under Article 258 TFEU.

Neither option is without issues.

With regard to the former, the Köbler judgment makes the compensation of damages resulting from a decision of a court of last instance subject to three conditions: (a) the rule of Community Law infringed is intended to confer rights on individuals; (b) the breach is sufficiently serious; and (c) there is a direct causal link between that breach and the loss or damage sustained by the injured parties. In order to determine whether the infringement is sufficiently serious, as required by criterion (b), the breach must be a “manifest infringement”.

As for the remedy provided by Article 258 TFEU, the CJEU has occasionally found a Member State in breach of EU law specifically for the failure of a last instance court to make a reference to the CJEU [15] . However, AG Bobek argues that the decision whether to initiate an infringement proceeding is entrusted to the complete discretion of the Commission, and the parties do not have any role nor power in this regard [16] .

4. AG Bobek’s proposal

To conclude, according to the AG, the public purpose of the reference for a preliminary ruling should be enhanced, as a form of guarantee for the uniform interpretation and further development of EU law. Focus should shift from the private sphere to the public one and to a systematic approach. This objective can be achieved by reaffirming the scope and the purpose of Article 267(3) TFEU, as set out in the judgment Hoffmann-La Roche . In practice, this would mean replacing the “ obsolete ” CILFIT criteria with new, cumulative conditions which take into account the needs outlined above. The obligation of the court of last instance would therefore only arise when:

• the case raises a general issue of interpretation of EU law (as opposed to its application);
• to which there is objectively more than one reasonably possible interpretation; and
• for which the answer cannot be inferred from the existing case law of the CJEU (or with regard to which the referring court wishes to depart from that case law).

On the first criterion, Bobek argues that the preliminary proceedings often focus on factual and specific issues and that providing detailed solutions to individual questions does not always help promote uniform application of EU law.

The interpretation, formulated in an abstract way, is linked to the scope and purpose of a certain provision; the application, on the contrary, consists in subsuming a case within a definition. Interpretation, therefore, shall have a general or generalizable scope: and in so doing would contribute to the elimination of very specific, particular cases, which, while potentially raising a question of interpretation of EU law, are “ simply of no general, structural impact ” [17] .

The second criterion concerns the dichotomy between the structural-objective method and subjective reasoning: rather than emphasizing the reasonable doubt of the individual judge with respect to the case at hand, one should search for the existence of plausible alternatives . The duty of referral would become stricter where the question raised by the parties highlights the presence of two or more potential interpretations of a certain provision , regardless of whether this divergence of views is within the same Member State or concerns several Member States. Moreover, such divergences would be relevant only with reference to the final decisions of the judges of last instance, and not with regard to contradictory interpretations within a single proceeding: the latter are not necessarily a symptom of different interpretations of the same rule but could be caused by an error of the lower body.

As regards the third criterion, AG Bobek points out that a national court of last instance is not obliged to refer a question of interpretation of EU law if the same provision has already been interpreted by the CJEU and that these guidelines facilitate resolution of the question submitted to it “ with confidence ”; established case law could also mean a single precedent, provided that the latter is clear and well-formulated.

As mentioned, these are cumulative criteria: the lack of just one of these requirements relieves national courts of last instance from the duty of referral.

Finally, if a national court decides not to submit a request, they should provide adequate reasons with regard to the non-existence of one of the three requirements, with particular reference to the interpretative problems submitted to its examination by the parties.

5. Concluding remarks

A first reflection concerns the alleged increase in references for preliminary rulings by the courts of last instance. In fact, one of the considerations that prompted AG Bobek to revisit CILFIT criteria is precisely the fear of an excessive increase in the number of proceedings brought before the CJEU [18] . If true that requests for preliminary rulings increased over the last five years, from 436 in 2015 to 641 in 2019 [19] , such data does not distinguish between requests for preliminary rulings made by courts of last instance and requests made by lower-level bodies. In the absence of specific statistics on this point, one has no choice but to rely on the data concerning the overall evolution of the Court's judicial activity. [20]

According to this data, the total number of preliminary ruling cases raised by bodies of last instance represent only 35% of the overall preliminary ruling cases [21] .

A second point concerns the feasibility of the criteria proposed by AG Bobek. Evidently, in 40 years, there has been no shortage of criticism of the requirements outlined in CILFIT case law: in the past, scholars and Advocates General have highlighted certain contradictions inherent in such requirements. Yet, probably thanks to their flexibility , which sets them apart , CILFIT criteria have survived for 40 years. After all, AG Bobek himself says: “ I am certainly not suggesting that we get rid of one unicorn in order for it to be replaced immediately by another ” [22] . In other words, even though the CILFIT case law has certain limitations, the criteria replacing it must ensure a better application of Article 267 TFEU.

Moreover, some of the newly proposed requirements have been found difficult to implement in practice. For instance, it may be difficult to draw a strict line between “interpretation” and “application”. Furthermore, regarding the third criterion, Bobek states: “ there is likely to be no shortage of (heated) discussion about what exactly, in a specific scenario, is ‘established case-law ” [23] .

Lastly, the observation that Article 267(3) TFEU is not endowed with any real direct effect is worthy of support. However, limiting the scope of the preliminary ruling procedure may not be the right way to best pursue the objective of procedural protection for private parties.

It now remains to be seen what position the CJEU will adopt: whether it will pave the way for a potential modification of the CILFIT criteria or whether, instead, it will opt to confirm its established case law.

* This GT Alert is limited to non-U.S. matters and law.

[1] Opinion of AG Bobek, delivered 15 April 2021, case C-561/19, Consorzio Italian Management e Catania Multiservizi c. Rete Ferroviaria Italiana SpA .

[2] See judgment CILFIT v. Ministero della Sanità , 6 October 1982, 283/81, EU:C:1982:335.

[3] This alert exclusively concerns the request for preliminary ruling regarding the interpretation (and not also that of validity ), since CJEU's established case law places the two cases on a different plane as regards the duty to make a reference for a preliminary ruling. As explained by the Advocate General in paragraphs 44-46, validity and interpretation questions, pursuant to CJEU case law, operates on a different and separate track. Indeed, with regard to validity, the duty to make a reference for a preliminary ruling applies to all national courts, regardless of whether the court or tribunal is a court of last instance. It follows that the exceptions set out in the CILFIT judgment do not apply to the obligation to refer a question of validity.

[4] Judgment of April 19, 2018, Consorzio Italian Management and Catania Multiservizi SpA v. Rete Ferroviaria Italiana , case C-152/17, EU:C:2018:264. For a recent case of a “double” referral for a preliminary ruling, see the Italian Council of State (“ Consiglio di Stato ”) Order No. 2327/2021. The case concerned a sanction imposed by the Italian Competition Authority (“ Autorità Garante della Concorrenza e del Mercato ” or “ AGCM ”), which found a violation of Article 101 TFEU; the Italian Council of State then decided to refer to the Court of Justice a ( first ) preliminary reference, defined by the CJEU's judgment of January 23, 2018 (C-179/16, EU:C:2018:25). The Italian Competition Authority, in light of the CJEU's ruling, rejected the appeals of the parties. The latter, however, sought the revocation of the Administrative Judge's ruling, invoking the misapplication of the principles expressed by the CJEU. The Council of State, therefore, by order of March 18, 2021, decided to refer, once again , a question for a preliminary ruling before the CJEU.

[5] In the context of the main proceedings, the parties asked the Italian Council of State to refer the issue to the Court of Justice, pursuant to Article 267 TFEU, and to ask whether the interpretation of Domestic Law excluding prices review in procurement agreement relating to the so-called “special sectors” was compatible with EU Law and with the Directive no. 17/2004.

[6] As shown in point 8.2 of the judgment of the Council of State, published July 15, 2019, the applicants considered that the Court of Justice’ judgment had not taken a position on the instrumental character of the cleaning services, qualified as a “special sector” under European and domestic law. The parties noted how the judgment assumed that the contractual relationship had been carried out without any extension, even if this was not the case. Moreover, the applicants pointed out that the price review is required also by a change in the European and National Regulatory Framework.

[7] The Council of State asks the CJEU to clarify whether: “ in accordance with Article 267 TFEU, is a national court whose decisions are not amenable to appeal required, in principle, to make a reference for a preliminary ruling on a question concerning the interpretation of EU law even where the question is submitted to it by one of the parties to the proceedings after that party has lodged its initial pleading, or even after the case has been set down for judgment for the first time , or indeed even after a reference has already been made to the Court of Justice of the European Union for a preliminary ruling ” (emphasis added), Opinion of the Advocate General Bobek, cited, point 16.

[8] Italian Council of State’s judgment, cited, point 9.4.2.

[9] The principle can be inferred from the CJEU's case law, as stated, among others, in Aquino , judgment of March 15, 2017, case C-3/16, EU:C:2017:209, point 34: “ a court adjudicating at last instance is by definition the last judicial body before which individuals may assert the rights conferred on them by EU law ” (emphasis added).

[10] Judgment of May 24, 1977, Hoffmann‑La Roche , 107/76, EU:C:1977:89.

[11] Kornezov, The new format of the acte clair doctrine and its consequences , 2016 CMLR , 1317 – 1342, affirmed that what is important for the purposes of compliance with the criterion referred above is precisely the personal and subjective belief of the judge regarding the possibility that such reasonable doubt arises in the minds of other judges.

[12] Opinion of Advocate General Bobek, cited, point 133.

[13] Opinion of AG Bobek, cited, point 104. The acte clair doctrine has received criticism also from other Advocates General. The concept is taken up in AG Jacobs’ Opinion in Wiener SI case, C-338/95, EU:C:1997:352, delivered on July 10, 1997, whereas at point 65 affirms “ […] I do not think that the CIĹFIT judgment should be regarded as requiring the national courts to examine any Community measure in every one of the official Community languages […]. That would involve in many cases a disproportionate effort on the part of the national courts; moreover reference to all the language versions of Community provisions is a method which appears rarely to be 'applied by the Court of Justice itself, although it is far better placed to do so than the national courts”. See also Advocate General Stix-Hackl’s Opinion in Intermodal Transports BV , case C‑495/03, EU:C:2005:552, who at point 99 states: “ Accordingly, I take the view that the judgment in Cilfit cannot be intended to mean that the national court is required, for example, to examine a provision of Community law in every one of the official Community languages . That would place a practically intolerable burden on the national courts and would de facto reduce the - albeit limited - delegation to national courts of last instance of questions of Community law which can be answered 'unequivocally' in accordance with the judgment in Cilfit to a lip service or a 'tactical move' ”. Some scholars (Kornezov, cited, page 1329) interpreted both Opinions as an attempt to reduce the scope of the acte clair doctrine, allegedly affected by excessive rigidity. For Broberg-Fenger, in Preliminary references to the European Court of Justice , Oxford, 2010, page 243, AGs Jacobs and Stix-Hackl “ argued that CILFIT should not be regarded as requiring the national courts to examine a Community act in every one of the official Community languages, but rather as an essential caution against taking too literal an approach to the interpretation of Community provisions ”.

[14] Köbler v. Austrian Republic judgment, September 30, 2003, case C-224/01, ECLI:EU:C:2003:513.

[15] Commission v. France , C-416/17, EU:C:2018:811, October 4, 2018, whereby the CJEU found that the French Republic had failed to fulfil its duty under the third paragraph of Article 267 TFEU because the French Conseil d'Etat had failed to make a reference for a preliminary ruling. See also Commission v. Italy, December 9, 2003, case C‑129/00, EU:C:2003:656, and Commission v. Spain , November 12, 2009, case C‑154/08, not published, EU:C:2009:695.

[16] Kornezov, The New Format of the Acte Clair Doctrine and its Consequences , cited., point. 1318; see also Wattel, Köbler, CILFIT and Welthgrove: we can’t go on meeting like this , CMLR , volume 41, 2004, page 190.

[17] Opinion of AG Michal Bobek, point 148.

[18] Regarding the evolution of EU law and the judicial system, at point 122 of his Opinion, Bobek affirms there is a “ staggering number of new requests for a preliminary ruling ”.

[19] See the Court of Justice’s 2019 Annual Report , page 163.

[20] See the Court of Justice’s 2019 Annual Report , which, on page 183, provides an overview of the general trend in the work of the Court from 1952 to 2019 as regards preliminary rulings referred, distinguishing by Member States and by jurisdictional bodies. 

[21] Ibid. For instance, Italy has an overall 1583 references for a preliminary ruling, 1205 were derived from judicial bodies other than the Constitutional Court, the Court of Cassation and the Council of State. The same applies to Germany where, against a total of 2641 applications, 1785 came from judicial bodies that were not of last instance.

[22] AG Bobek, at point 149, refers to AG Wahl's statement in X and van Dijk, joined cases C-72/14 and C-197/14, EU:C:2015:319, which affirms (point 67): “ If one were to adhere to a rigid reading of the case law, coming across a ‘true’ acte clair situation would, at best, seem just as likely as encountering a unicorn. ”

[23] Opinion of AG Bobek, cited, point 158.

• GT Alert_Rinvio Pregiudiziale e Giudice di Ultima Istanza: Occorre Ripensare i Criteri “CILFIT”?
• GT Alert_Preliminary Ruling and Court of Last Instance: Does the EU’s ‘CILFIT’ Criteria Need to be Revisited?

Iowa’s Book Ban Is Reinstated by Appeals Court But Case Against It Will Continue

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A federal appeals court on Friday reinstated an Iowa law that bans books depicting sex acts from school libraries and bars instruction about gender identity and sexual orientation through 6th grade.

The unanimous decision by a three-judge panel of the U.S. Court of Appeals for the 8th Circuit, based in St. Louis, was not an outright ruling on the merits of the Iowa law. It vacated a preliminary injunction issued late last year by a federal district judge, saying the judge had conducted a flawed legal analysis.

Still, the panel may have provided some hints about the merits of the law known as Senate File 496, which was signed by Gov. Kim Reynolds, a Republican.

The restriction on sex depictions in books “is a viewpoint-neutral, content-based, age-appropriate restriction on the content of public school libraries,” the court said.

“Iowa is not required to tolerate speech that undermines or is inconsistent with its central mission of educating Iowa children,” wrote Judge Ralph R. Erickson, an appointee of President Donald Trump. He was joined by Judge L. Steven Grasz, another Trump appointee, and Judge James B. Loken, an appointee of President George H.W. Bush.

The panel also said the challengers in two consolidated cases, which include LGBTQ+ students as well as major book publishers, may pursue their “as-applied” challenge, claims that deal with how a law affects specific individuals or situations.

The lawsuits say the Iowa book provision has led public schools to remove such works as Aldous Huxley’s Brave New World , Richard Wright’s Native Son , and Toni Morrison’s Beloved and The Bluest Eye . Iowa school districts have had sharply divergent reactions as to which books should be removed and have tended to err on the side of removal, the plaintiffs have said.

The plaintiffs have said the provision on discussing gender identity and sexual orientation in grades preK-6 amounts to a “don’t say trans” or “don’t say gay” law, though the district judge who blocked it noted that because of its neutral language, the provision would seem to bar discussing the gender of any historical figure and might even prohibit separate 6th grade boys and girls basketball teams.

That judge, Stephen H. Locher, an appointee of President Joe Biden, issued a preliminary injunction against the books and classroom discussion provisions. He declined to block a third provision dealing with parental rights. That section requires Iowa schools to inform parents if a student seeks to use pronouns or names that don’t match their registration records. The judge said no plaintiff had standing to challenge that provision.

Ruling rejects argument by state that book decisions are a form of government speech

The state of Iowa appealed the preliminary injunction, and the 8th Circuit court, in its Aug. 9 decision in GLBT Youth in Iowa Schools Task Force v. Reynolds , vacated the injunction and ordered further proceedings in the district court.

The appeals panel rejected a key argument made by the state of Iowa, that the placement and removal of books in a public school library is a form of government speech, which would give the state greater leeway to make content-based decisions without running afoul of the First Amendment.

“It is doubtful that the public would view the placement and removal of books in public school libraries as the government speaking,” Erickson wrote.

Consider examples of historic tomes on political science, he said. “A well-appointed school library could include copies of Plato’s The Republic , Machiavelli’s The Prince , Thomas Hobbes’ Leviathan , Karl Marx and Freidrich Engels’ Das Kapital , Adolph Hitler’s Mein Kampf , and Alexis de Tocqueville’s Democracy in America . As plaintiffs noted, if placing these books on the shelf of public school libraries constitutes government speech, the state ‘is babbling prodigiously and incoherently.’”

Erickson said because the state of Iowa has not historically exerted extensive control over the removal of books from school libraries, that supports the standing of the plaintiffs to challenge the new statewide restriction on such books.

Meanwhile, one individual plaintiff had standing to challenge the classroom instruction provision, a student who has identified as transgender since a young age and was in 6th grade or below. Thus, the lawsuit over that provision could proceed, the court said.

Iowa Attorney General Brenna Bird, a Republican, celebrated the ruling, saying on X, the platform formerly known as Twitter, that “this victory ensures age-appropriate books & curriculum in school classrooms & libraries. With this win, parents will no longer have to fear what their kids have access to in schools when they’re not around.”

Lambda Legal, the LGBTQ+ rights group that helps represent the individual plaintiffs, said it was unfortunate the appeals court was reinstating the law right before the start of a new school year. However, the group was encouraged that the panel agreed with some of the plaintiffs’ arguments.

“Iowa families, and especially LGBTQ+ students who will again face bullying, intimidation, and censorship as they return for a new school year, are deeply frustrated and disappointed by this delay,” Lambda Legal said in a statement. “The appeals court acknowledged that our student clients have been harmed by the law and have the right to bring suit. The court also rejected the state’s claim that banning books in libraries is a form of protected government speech. We will ask the district court to block the law again at the earliest opportunity.”

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Iowa Law Requiring Schools to Remove Books With Sexual Content to Take Effect

A federal appeals court lifted an injunction on the law, which had already led to the removal of thousands of books from public school classrooms and libraries.

By Alexandra Alter and Elizabeth A. Harris

A law in Iowa that bars public schools from having books that depict sexual acts can take effect, following a ruling by federal appeals court judges on Friday.

The ruling overturned a preliminary injunction issued in December by a federal judge. The case will now go back to District Court.

The law, known as Senate File 496, was signed by Republican Gov. Kim Reynolds in May 2023, and bans any titles that describe sexual acts from K-12 schools, with the exception of religious texts. The law also limits instruction about sexual orientation and gender identity before seventh grade, which has led some schools to remove books that address those issues.

After the law was passed, thousands of books were banned from schools around the state, according to The Des Moines Register . Titles that have been removed include classics and popular fiction like “The Color Purple,” by Alice Walker, “Looking for Alaska,” by John Green, and “The Handmaid’s Tale,” by Margaret Atwood.

Several groups have challenged the law on free speech grounds, including the American Civil Liberties Union of Iowa, Lambda Legal, the publisher Penguin Random House and the authors Laurie Halse Anderson, Malinda Lo, Jodi Picoult and Green.

In December, Judge Stephen Locher, who was appointed by President Biden to the U.S. District Court for the Southern District of Iowa, temporarily blocked the law from taking effect. The law was too vague, he argued, and could result in the mass removal of books, casting a “puritanical ‘pall of orthodoxy’ over school libraries.” The state of Iowa appealed the injunction.

In the Friday ruling, the three-judge panel with the U.S. Court of Appeals for the Eighth Circuit argued that the injunction had been based on a “flawed analysis of the law.” Removing books from schools does not necessarily constitute a free speech violation when the government’s purpose is to impose “viewpoint-neutral, content-based, age-appropriate restriction on the content of public school libraries,” the opinion said.

In a statement, Governor Reynolds praised the judges’ opinion.

“It should be parents who decide when and if sexually explicit books are appropriate for their children,” she said.

Groups that have sued to stop the implementation of the law said they would continue in their efforts to prevent it from taking effect.

“Iowa families, and especially L.G.B.T.Q.+ students who will again face bullying, intimidation and censorship as they return for a new school year, are deeply frustrated and disappointed by this delay,” Lambda Legal and the A.C.L.U. of Iowa said in a joint statement. “Denying L.G.B.T.Q.+ youth the chance to see themselves represented in classrooms and books sends a harmful message of shame and stigma that should not exist in schools.”

The legal fight in Iowa is happening as book bans are surging across the United States. In the past few weeks, new laws and regulations restricting access to books that could be considered obscene or harmful have been put in place in Utah, Idaho, South Carolina and Tennessee.

Alexandra Alter writes about books, publishing and the literary world for The Times. More about Alexandra Alter

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