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According

to

Steiner,

Woods

and

Twigg

Flesner,

preliminary

ruling procedure hears almost 50% of the cases heard by European


Court

of

Justice (ECJ).

development

and

Thus

enforcement

it

plays
of

central

European

part

in

Community

the
1

law.

Preliminary ruling procedure, regulated by Article 267 Treaty on the


Functioning of the European Union (TFEU), described as the most
important mechanism of constitutionalisation of European law.

The

preliminary rulings procedure allows any national courts to refer a


question of EU law to the ECJ and ask them for interpretative
guidance. The ECJ does not rule for or against the parties. In other
words, it does not apply the law to the facts, it simply interprets
the law and answers the questions referred. The national courts
must then apply the law and the ECJs guidance to the factual
situation before them.

The importance of the procedure was formulated by the ECJ in


Rheinmuhlen

Dusseldorf

case

was

that,

Article

267

TFEU

is

essential for the preservation of the community character of the law

1 Available at http://iele.weebly.com/uploads/2/5/1/8/25181752/turinik.pdf
accessed 6 March 2015.
2 T Capeta, Judicial Process in the European Union (2009) University of Zagreb,
Faculty of Law.
3 J Gutt, T Connor,Law Express Question and Answer: European Union Law
(Revision Guide) (Pearson Education Limited 2012) 48.
4 Rheinmuhlen Dusseldorf [1974] ECR 139.

established by the treaty and has the object of ensuring that in all
circumstances this law is the same in all states of the community.

The preliminary ruling procedure ultimately, ensures the correct and


uniform interpretation of EU law through a system of cooperation
between

the

Court

and

national

courts

and

tribunals,

as

well

contributing to the rounding off of direct means for scrutinising the


legitimacy of EU acts.

One teasing academic question arises as to the importance of


this Article. One of the greatest features of the article for the ECJ
is that it has secured the Court with the supply of cases coming
from the national courts.

Cases that have caused deep changes in

the EU legal order would be Van Gend en Loos


9

and Costa v ENEL

, in which the ECJ took the opportunity to stress the relationship

between national law and EU law and the legal implications of the
transfer of sovereignty when Member States established the EU,
through which the Courts established the doctrine of direct effect. It
5 Available at http://www.advokatkadaniela.sk/preliminary-ruling-procedure.html
accessed 6 March 2015.
6 Available at http://www.eracomm.eu/oldoku/SNLLaw/10_Preliminary_ruling_procedure/2012_11_Domenicucci
_EN.pdf accessed 6 March 2015.
7 A D Bondt, Master in European Governance Universite Du Luxembourg (2012),
1.
8Van Gend en Loos v Nederlandse Administratie der Belastingen (1963) Case 26/
62.
9 Flaminio Costa v ENEL [1964] ECR 585 (6/64).

was

of

the

Courts

view

that

new

legal

order

had

been

established with the EU law and that this gave rights to individuals
which their national courts had to uphold.

10

Following this, Member

States are not obliged to create law against the legal order. This
clearly illustrates supremacy and precedence over the national law.
11

Whilst it thus aims to avoid divergences in the interpretation of

Union law which the national courts have to apply, it likewise tends
to ensure this application by making available to the national judge
a means of eliminating difficulties which may be occasioned by the
requirement of giving Union law its full effect within the framework
of

the

judicial

systems

of

the

Member

States.

12

Thus,

the

provisions Article 267 TFEU must be seen in this light.


Discuss whether the Court of Justice of the European has been
excessively liberal (progressive/advanced) in its approach to exceptions
to the duty to refer of courts against whose decision there is no judicial
remedy.

While the national courts are bound by Article 267 TFEU to follow
preliminary rulings, no article in the treaty make ECJ rulings binding

in cases involving different parties or different facts. The national

10 M Cuthbert, Q&A European Union Law (Routledge 5th edn 2015 ) 87.
11 Mangold,Costa v ENEL (1964): On the Importance of Contemporary Legal
History Eliana Augusti et al. (eds.) Inter-Trans-Supra? Legal Relations and Power
Structures in History (Jahrbuch jungeRechtsgeschichte / Yearbook of Young Legal
History), Saarbrcken: AVAkademikerverlag 2011, 220-234
12 Available at http://www.law.kyushuu.ac.jp/programsinenglish/thaillm/materials/2013-2014/course2/Day%202%20%20Preliminary%20Rulings.pdf accessed 16 March 2015.

courts, however, have adopted the doctrine of acte clair, which


allows them to base judgments on previous ECJ interpretations of
the applicable

laws without making an Article 267 referral to the

court. In this fashion, national courts have accorded the courts


decisions persuasive, if not binding, precedential effect.

13

It is only

fair to question whether the time is not now ripe for reviewing the
famous ECJ case of CLIFIT v Ministero della Sanita

14

where ECJ set

out criteria for acte clair. CLIFIT essentially explained that sometimes
the correct application of Community law may be as obvious as to
leave no scope for any reasonable doubt as to the manner in
which the question raised is to be solved.
In deciding whether the matter is clear to national courts, the
national courts must bear in mind that Community law is drafted in
several languages. First, that Community law uses terminology that
is peculiar to it, secondly, that legal concepts do not necessarily
have the same meaning in Community law and the law of various
Member States and lastly, that Community law must be placed in
its context. If these conditions are met, the provision is acte clair
and there is no need to refer the questions for a preliminary ruling.
15

13 Jones, Lenore, Opinions of the Court of the European Union in National


Courts (1995-1996) NYU International Law and Politics VOl28.275, 286.
14 CLIFIT v Ministero della Sanita [1982] ECR 3415.
15 J Guth, T Connor, Question and Answer European Union Law (Longman,
Pearson, 2012) 52.