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Esther REMY

3rd baccalaureate law

Seminar theory of law

Professor: Olivier van der Haegen

The preliminary reference procedure: The


national judge and the application of the
European law
Esther Remy

ABSTRACT
The preliminary reference procedure represents half of the European court of
Justice’s activity and the most important rulings are given on preliminary references
by national courts. It is based on the collaboration of the ECJ and national courts,
which have shared responsibility in the development of the European legal order. This
balance between powers of national courts and of the ECJ is frail and is based on
mutual trust and respect.
Introduction s

The preliminary ruling procedure is by far the most important procedure for
legal practitioners and courts. It has an immense impact on European law, but
also on the relationships between the European institutions, the Member states,
and individuals. This essay examines the preliminary reference procedure
(Chapter 1), how the referral must be made and how it must be answered
(Chapter 2), and finally assesses the efficiency of this mechanism (Chapter 3).
The question of the impact and the effect it has on the national judge will be a
thread throughout the whole essay.

Chapter 1. The Preliminary reference procedure

The Treaty of Rome1 provided for the preliminary reference procedure in order
to ensure uniform application of European law throughout the Member states.
Although originally conceived as playing a relatively minor role, it has gradually
become the dominant procedure and a rather complex system2.

Section 1. The content of the Preliminary reference procedure

Art. 267 TFEU states that the European court of Justice (ECJ) can give
preliminary rulings concerning the interpretation of the treaties and the
interpretation and validity of the acts of European institutions, bodies, offices
and agencies.

A national court does not have the power to declare an act of the European
institutions invalid3. When the validity of an act is at stake, the ECJ has the

1 The Treaty of Rome, 25 march 1957.


2 M. DAUSES, ‘Practical considerations regarding the Preliminary ruling
procedure under article 177 of the EC treaty, Fordham international law journal,
vol. 10, n° 3, 1986, p. 538-577.
3 Foto-frost v. Hauptzollamt Luebeck-Ost, Case 314/85, ECR 1987.

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exclusive jurisdiction to rule upon it4, may it be by direct review or by a
judgement on referral of a national court5.

The conditions under which direct review is possible and those in which it is not
are often reminded by the ECJ6. When the review of the legality of a European act
cannot be carried out directly by the European courts because the demand is
inadmissible7, there must be the possibility to bring a request before the national
judge who will then make a reference for a preliminary ruling to the ECJ8.

A preliminary ruling takes place when a national court decides that EU law is
relevant to the case and that it is going to ask the ECJ for an interpretation of EU
law. The opinion will be sent back to the national court by the ECJ, and the
former will then make the final ruling taking into account the correct
interpretation of the European provision. The national court can decide by itself
to refer to the ECJ or may do so by the request of one of the parties9.

Furthermore, the ECJ considers that it can hear preliminary references about the
interpretation of European provisions applicable by virtue of a Member states’
national law (jurisdiction ‘by renvoi’). Be it where national law makes explicit
reference to European law, whether it transposes European law or when it
pursues the same aim as a European provision10. Notice that this reference to the
ECJ is an option for the national court and that there is no obligation to refer.

The ECJ justifies its jurisdiction by the need of uniform interpretation of


European law, irrespective of the different circumstances. Since the jurisdiction
‘by renvoi’ is a preliminary ruling, it will only rule upon the interpretation of
European law, not upon the factual dispute of the case that remains the

4 C. LENTZ, ‘The role and mechanism of the preliminary ruling procedure’,


Fordham International law journal, vol. 2, n° 2, 1994, p. 389.
5 K. LENAERTS, ‘The rule of law and the coherence of the judicial system of the

European Union’, CML Rev., 2007, p. 1628.


6 See Parti écologiste ‘Les Verts’ v. European Parliament, Case 294/83, ECR 1986.
7 Art. 263 TFEU. E.g. when a decision is actually an opinion or a recommendation

or when an applicant cannot demonstrate that he is the addressee of an act.


8 K. LENAERTS, ibidem, p. 1627.
9 C. CARRUBA and L. MURRAH, ‘Legal integration and the use of preliminary

ruling process in the European Union’, The MIT press, vol. 59, n° 2, 2005, p. 400.
10 Case Massam Dzodzi, Case 197/89, ECR 1990.

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competence of the national judge. This approach shows that the ECJ considers
itself as the highest court of the European Union and that it sees the Union as one
judicial order, not as composed of a multitude of national judicial orders. By
declaring itself competent for preliminary rulings ‘by renvoi’ it is participating to
the emergence of a jus communae europeum, applicable in all European states11.

This intervention of the ECJ has been strongly criticised and is one of the areas
where the disagreement between the Court and its Advocates General is the
most apparent. The latter argue that (i) the possible divergences of
interpretation are not avoided by the ECJ’s intervention. The ECJ interprets
outside the boundaries of its competence, since (ii) it rules upon national law
and (iii) the ECJ also gives a preliminary ruling on the interpretation of a
European provision according to the European context, which may be different
than the national context in which the provision is being used12.

Most national governments are reluctant towards references made to the ECJ
because European law applies ‘by renvoi’. These governments have the
impression that the ECJ is generally more favourable towards individuals in their
rulings. But more fundamentally the jurisdiction ‘by renvoi’ is perceived as a loss
of sovereignty since national law will be subject to European interpretation13.

Section 2. The purpose of the Preliminary reference procedure

The different actors in the preliminary reference procedure have different


reasons to use the procedure.

11 T. TRIDIMAS, ‘Knocking on heaven’s door: fragmentation, efficiency and


defiance in the preliminary reference procedure’, CML Rev., 2003, p. 36.
12 See Advocate General Jacob’s opinion in the case A. Leur-Bloem v. Inspecteur

der Belastingendienst/Ondernemingen Amsterdam 2, Case 28/95, ECR 1997.


13 T. TRIDIMAS, op. cit., p. 36.

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Private parties will request referral to the ECJ when they expect a net financial
gain from doing so. They weigh the probability of winning the court case against
the costs and the length of the procedures14.

National courts will grant or decide to refer when they expect the utility of the
answer to surpass the cost in terms of money and time. It allows them to be
involved in decision making and to influence European public policy. The
national courts serve as the ‘juges de droit commun’ in the Union legal order15.

The ECJ has its own policy preferences, which will shine through in its decisions
on preliminary reference. It will mostly act through negative integration, by
removing the national restrictions to the fundamental freedoms of movement.
Nevertheless, it cannot go completely against the Member state’s interest for fear
to see its rulings overturned by political-legislative authorities16.

The preliminary reference procedure enables national courts to grant direct


effect to rights and assure correct application of these provided for by European
law17; thus guaranteeing the supremacy of European law18. It facilitates access to
justice by emphasizing the fact that European law must be applied in front of the
European institutions, but also in front of the national courts.

This guarantees equal treatment of all Member state citizens, but also limits
market distortions and promotes economic efficiency19.

It has allowed the ECJ to establish the principles of supremacy, direct effect and
state liability and to lay down the European fundamental values20.

14 J. PERTEK, ‘Renvoi préjudiciel’, Dictionnaire juridique de l’union européenne,


http://fdv.univ-lyon3.fr, p. 3.

15 K. LENAERTS, op. cit., p. 1645.


16 C. CARRUBA and L. MURRAH, op. cit., p. 419.
17 NV Algemene Transport- en Expeditie onderneming van Gend & Loos v.

Netherlands Inland Revenue Administration, Case 26-62, ECR 1963 ; Costa v.


E.N.E.L, Case 6/64, ECR 1964.
18 T. TRIDIMAS, op. cit., p. 10.
19 J. KOMAREK, ‘In the court(s) we trust? On the need of hierarchy and

differentiation in the preliminary reference procedure’, EL Rev., 2007, p. 479.

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Individuals can therefore use European law as a shield to protect them from
abuse of national authorities, but also as a sword to challenge national law which
infringes European law21.

All the aims mentioned above contribute to the fact that the preliminary
reference procedure is in fact, indirectly, a means of ensuring the judicial review
of compatibility of acts of Member states22.

Chapter 2. The functioning of the Preliminary reference procedure

Section 1 examines which bodies are competent to refer. Next the decision made
by the national court to refer is explained (Section 2), followed by an explanation
of the procedure of the preliminary ruling (Section 3) and finally the scope of the
ruling (Section 3).

Section 1. Bodies competent to refer

It is for the national court to decide whether a preliminary reference to the ECJ is
needed and what the question referred would be23.

The role of the national courts is essential to the functioning of the preliminary
reference procedure, but also to the development of a European legal order. The
national courts, which are the guardians of the treaties, are going to enforce the
ECJ’s rulings and without their support the ECJ wouldn’t be able to reach the
legal orders of the Member states.

The national court referring to the ECJ must be a ‘court or tribunal’24. Whether
the referring institutions fall within these notions is appreciated by the ECJ,
without regard to the categorization made in national law25.

20 S. PRECHAL and B. VAN ROERMUND, The coherence of EU law: the search for
unity in divergent concepts, Oxford, Oxford university press, 2009, p. 507.
21 G. TRIDIMAS and T. TRIDIMAS, ‘National courts and the European court of

Justice: a public choice analysis of the preliminary reference procedure’,


International review of law and economics, vol. 24, n° 2, 2004, p. 128.
22 K. LENAERTS, op. cit., p. 1641.
23 C. LENTZ, op. cit., p. 394.

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To determine whether a national institution can be considered as a ‘court or
tribunal’, the ECJ takes some factors into account; most notably if the body is
established by law, if it’s a permanent body, if its jurisdiction is compulsory, and
whether the procedure before it is inter partes26. These criteria are not
exhaustive and each have the same importance27. The ECJ has a flexible approach
towards the assessment of these criteria28. Its main aim is to make the
preliminary ruling procedure available to all judicial institutions that have to
apply European law and to ensure a remedy for the protection of Union rights;
therefore it interprets the standards broadly29.

Section 2. The decision to refer

Article 267 TFEU makes a distinction between ‘may’ and ‘shall’. It distinguishes
situations in which the national court is obliged to refer and situations in which
it is allowed to do so30.

The referral is an obligation when the national court acts as a final resort, against
whose decision there is no judicial remedy under national law.

The referral is optional for courts against whose judgements there are judicial
remedies31.

When an appeal is possible from the national court to a supreme court only if the
latter will grant the appeal by declaring it admissible, the ECJ ruled that it is not a
court against whose decisions there is no judicial remedies32. In such
circumstances, the court is not under the obligation to refer the matter to the ECJ
for preliminary ruling, but it may do so.

24 Art. 267 TFEU ; see Broekmeulen v. Huisarts registratie Commissie, Case


246/80, ECR 1981 and Noordsee v. Reederei Mond, Case 102/81, ECR 1982.
25 C. LENTZ, op. cit., p. 393.
26 Victoria Film, Case 134/97, ECR 1998.
27 A. ARNULL, ‘The use and abuse of art. 177 EEC’, The modern law review, 1989,

p. 623.
28 See Doris Saltzmann, Case 178/99, ECR 2001; and Paul Miles and others v.

European schools, Case 196/08, ECR 2009.


29 T. TRIDIMAS, op. cit., p. 28.
30 A. ARNULL, op. cit., p. 623.
31 C. LENTZ, op. cit., p. 389.
32 Kenny Roland Lyckeskog, Case 99/00, ECR 2002.

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Another hot topic is whether, in the case of fundamental rights that are protected
both by a national constitution and by a European provision, national
jurisdictions can impose an order of priority in the compliance review and
require that the matter should first be referred to the national constitutional
court before a referral to the ECJ. Both in Belgium and in France, the respective
laws relating to the constitutional court impose that type of priority. In the
recent Melki-Abdeli judgment

of the Court of Justice33, the court stated that, whilst an order of priority in the
compliance assessment is permitted, it may not prevent the national court to
refer the issue to the ECJ at any time in the procedure. Therefore, a national state
can require that the matter should be submitted first to the constitutional court,
but may not prevent a parallel referral to the ECJ. In addition, the court also ruled
in its Melki-Abdeli judgment that such an order of priority may not prevent that
when a national law merely implements provisions of an EU directive, any
question about the validity of the EU directive vis-à-vis the primary EU-law must
be submitted first to the ECJ before any constitutional court can review the
constitutionality34.

The ECJ may reject the referral of a national court because a precedent has
already been established and that the matter can be considered as closed or
when the question is obvious and that referral wouldn’t be useful 35. The
precedent does not have to be ‘materially identical’; the courts have to determine
whether the point of law at stake has already been dealt with36.

33 Melkia and Abdeli, Joint cases C-188-10 and C-189-10, ECR 2010.
34 J. VELAERS, ‘Het arrest- Melki-Abdeli van het Hof van Justitie van de Europese
Unie : een voorwaardelijke «fiat» voor de voorrang op de toetsing aan de
Grondwet op de toetsing aan het internationaal en Europees recht’, R.W., nr. 19, 8
january 2011, p. 720-794.
35 CILFIT and Lanificio di Gavardo SpA v. Ministry of Health, Case 283/81, ECR

1982.
36 A. ARNULL, op. cit., p. 625.

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The ‘acte clair’ doctrine has been put forward by the ECJ in the ‘Three River
District Council case’37. It held that national courts do not have an obligation to
refer when the point of law is reasonably clear and free from doubt.

Where precedent exists, the ECJ will not hear the referring court’s question,
unless the latter convinces it that the precedent must be changed or that the case
concerned doesn’t fall into the precedent established and that it is to be
distinguished by a separate ruling of the ECJ38.

Nevertheless, article 20 of the Statute of the ECJ obliges the ECJ to hear any
observations made by national governments and any European institution being
concerned by the case, before dismissing the referral.

The ‘acte clair’ doctrine grants some discretion to the national courts who will
have to make a cost-benefit analysis, evaluating the disadvantages of longer
delay and higher costs, relative to the clarification obtained by making a
reference to the ECJ. This affects negatively the uniformity of application of
European law, but it also prevents the ECJ from being submerged by referrals
from national courts.

The fact that the ECJ will not hear cases of which the point of law has already
been ruled upon shows clearly that the ECJ sees itself as a supreme court of one
single legal order. National cases in front of national courts must follow
European precedents.

Section 3. How to refer

Requests for preliminary ruling must be (i) relevant and (ii) clearly formulated.
The ECJ will reject the question asked isn’t relevant to rule on the case pending
before the national judge, if the request isn’t clearly formulated and when the
question is hypothetical. The national court must show that a doubt about
European law and its interpretation has arisen that is the proper subject of a
reference, in other words it must concern a dispute in which EU law is

37 Three Rivers District Council v. Governor of the Bank of England, 2004, HL.
38 A. ARNULL, op. cit., p. 623.

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pertinent39. This all depends on the appreciation made by the ECJ, which decides
in fine which cases it will rule upon.

The ECJ may ask the national court for clarification about the question asked by
the national court. This allows it to understand the case in front of the national
judge and to give a useful answer, but it does imply a longer procedure and
higher costs.

Having said this, when deciding upon the admissibility of the preliminary
reference, the ECJ does not look at the competence of the national court to hear
the case under national law, neither does it check whether the facts of the case
that have been communicated to her are correct40. This shows that the role of
the national judge isn’t just essential for the starting of the preliminary
procedure, but also during. If the request is presented correctly and with enough
information, the European judge will base its answer entirely on the information
given to him by the national judge.

Section 4. The effects of referral

The preliminary ruling delivered by the ECJ will be binding on the national
court41. It is the national court that will render the final judgement by applying
the correct interpretation of European law42. The judgment has binding effect on
interpretation and validity, not only vis-à-vis the referring court and the national
courts outside the specific dispute but also regarding the other courts of the
Union before which the same point of law arises43. The judgement of the ECJ on
the interpretation of European law has therefore ‘erga omnes’ effects44.

Moreover, the court’s judgement only expresses what was already contained
from the start in a specific European provision, so the interpretation will be

39 C. LENTZ, op. cit., p. 389.


40 T. TRIDIMAS, op. cit., p. 22.
41 D. CHALMERS, G. DAVIES, G. MONTI, EU law, cases and materials, Cambridge,

Cambridge university press, 2010, p. 160.


42 C. LENTZ, op. cit., p. 403.
43 G. TRIDIMAS and T. TRIDIMAS, op. cit., p. 128.
44 Da Costa en Schaake NV, Jacob Meijer NV, Hoechst-Holland v. Netherlands Inland

Revenue Administration, Joint Cases 28 to 30-62, ECR 1963.

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effective ‘ex tunc’, or in other words retroactively up to the day the provision
entered into force. This will have a significant impact upon the national courts,
that will have to assess national measures with European law and particularly
the ECJ’s interpretation of it45.

The issue of appeal of the decision to refer arises here. When a national court
submits a request for preliminary ruling it must submit the question itself and
stay the national proceedings. The concern here is whether the request for
preliminary reference is put in the same decision as the one staying the national
proceedings, or in a separate one. In most national legal systems the decision of
the court of first instance may be subject to appeal by a higher court. If the
request for preliminary ruling and the decision to stay the proceeding are
considered to form a whole, the decision to request preliminary ruling would be
reviewable by the appellate court as well46. This shows the fundamental role of
national courts in the preliminary reference procedure, may they be of first
instance, appellate or supreme. The national judiciary could block the control
exercised by the ECJ at several stages of the procedure if it wanted to do so.

If a national court fails to make a reference to the ECJ, the parties have no choice
but to lodge an appeal on other grounds, hoping that the higher court will make
the reference. If it doesn’t, the parties will have no remedy available47.

Chapter 3. The efficiency and use of the preliminary reference


procedure

For the purpose of this essay, the distinction must be made between the use of
preliminary ruling in ‘old’ Member states and the ‘new’ Member states. We are
going to assess the difference in the quantity of use of the preliminary reference
procedure in different Member states, and what factors influence this use of
referral. Finally, the question of the efficiency of the current preliminary ruling
mechanism will be addressed.

45 K. LENAERTS, op. cit., p. 1643.


46 T. TRIDIMAS, op. cit., p. 37.
47 C. LENTZ, op. cit., p. 397.

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Section 1. Old Member states

As mentioned above, the preliminary ruling procedure implies the collaboration


between the national courts of the Member states and the ECJ. The collaboration
of national courts is a sine qua non condition for the efficiency of the preliminary
reference procedure and for the development of the European legal order 48. Vice
versa, national courts need to be able to understand correctly the European
provisions that they will have to apply and therefore to ask for clarification to
the ECJ. The consequence of this interdependency is that the balance of
competences between the two is frail. If the ECJ were to exceed its powers, the
reaction of the judiciary authorities of Member states would be prompt and
direct by refusing to apply its case law. In this regard, the use of preliminary
reference by national courts is an indicator of their support towards the ECJ and
its case law49.

Most notably, English courts are selective in the use of the preliminary reference
procedure due to their use of common law and the legislative role of the English
judge. On the other hand, other countries like Austria use it to the fullest.

The preliminary reference procedure doesn’t only have an impact on the


relationships between European institutions, the ECJ and the national courts; but
also on the interaction between lower national courts and national courts of final
instance. The ECJ acts as a third party through the preliminary ruling, and can
‘free’ lower courts from binding decisions of final instance courts. It enables a
national court to challenge higher courts’ decisions by referring to the ECJ,
whose decision will be binding for the national courts, including the last resort
courts that may have to change its trend of rulings50.

In the preliminary ruling system the ECJ isn’t imposing a decision upon a
national court. It’s a dialogue from judge to judge, who have to collaborate to
ensure correct and uniform application and interpretation of European law.
National judges have a fundamental role in this procedure because they are the

48 G. TRIDIMAS and T. TRIDIMAS, op. cit., p. 133.


49 T. TRIDIMAS, op. cit., p. 37.
50 T. TRIDIMAS, ibidem, p. 12.

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ones making the decision to refer, and thus participating to the development of
the Union’s legal order51.

Not all Member states accept the view that the European Union constitutes one
legal order. Intergovernmentalism underlines the fundamental role of the
Member states in the development of the European legal system. According to
this theory the ECJ does not have the power to act against the interests of the
Member States52.

A significant example of this is the Danish Maastricht Ratification case53. When


Denmark ratified the Maastricht Treaty, the Danish Supreme Court ruled that the
Treaty complies with art. 20 of their Constitution. That art. 20 allows powers of
the Danish authorities to be delegated to an international organization only to
the extent specified by statute. However, the Supreme Court added two
requisites. First, the delegation of power may not result in the adoption of acts
contrary to the national Constitution. Secondly, the fact that the powers need to
be ‘specified by statute’ means that the Danish judges may declare a European
act that has been upheld by the ECJ, inapplicable in Denmark when it is
established with required certainty that the act goes beyond the powers
delegated to the Union.

The Danish court is not the only one to embrace this State sovereignty friendly
theory. German, English and Italian courts have also ruled in the same
perspective. According to this theory, supremacy of European law doesn’t derive
from its own nature, but from national Constitutions that ‘allow’ it to be
supreme. Even though the ECJ is the only court competent to declare a European
provision void, national courts are the ones that have to apply it and will
therefore have the power to declare it inapplicable in their Member state when
contrary to their Constitutions. In this perspective, the preliminary reference to
the ECJ by a national court is a way to challenge and confront European
legislation. The national judge will himself decide in the end whether to apply
the European provision or not, therefore preliminary ruling in this viewpoint is a

51 T. TRIDIMAS, ibidem, p. 12.


52 G. TRIDIMAS and T. TRIDIMAS, op. cit., p. 125.
53 The Danish Maastricht Ratification Case, 12 August 1996.

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mechanism to invite the ECJ to respect the national constitutional principles of
the Member state, instead of trying to attain the correct interpretation and
application of European law54.

This is in total contrast with the neofunctialist view that argues that the ECJ
represents the interest of the different Member states, but that it also has an
autonomous power to impose its decisions55.

A new generation of national judges is emerging, who perceive the Union not as a
mechanism that is a threat to their national law but as a part of their legal
system. In this perception, referring to the European judge in case of doubt
seems ‘natural’56.

A great power has been given to the ECJ through preliminary ruling. But due to
the fact that the ruling needs to be applied by national authorities, the power is
limited. If a national government does not comply with the ECJ’s ruling, not only
does it put itself in a situation where state liability can be invoked, but it also
creates conflict with the judges who do conform to the judgements. On the other
hand, the ECJ must have the support of the legislative bodies of the European
Union to block national governments that try to adopt legislation to try to
circumvent or repeal; and also of the national judge that referred57.

Section 2. New Member states

There have been 35 requests for preliminary ruling by new member state’s
courts between 2004 and 2007. This is a modest number, especially compared to
the ‘old’ Member states that have submitted 702 requests58. Further increases in
the number of preliminary references made to the ECJ are expected due to the
expansion of the Union’s competences and the accession of new Member states.

54 T. TRIDIMAS, op. cit., p. 46.


55 G. TRIDIMAS and T. TRIDIMAS, op. cit., p. 125.
56 C. NAOME, Le renvoi prejudiciel en droit Européen: guide pratique, Bruxelles,

Larcier, 2010, p. 56.


57 G. TRIDIMAS and T. TRIDIMAS, op. cit., p. 138.
58 Press release 14/08 of 7 march 2008,

http://curia.europa.eu/en/actu/communiques

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The preliminary reference procedure seems to be unsuccessful in the new
Member states, but multiple recent cases show a sign of improvement in the
understanding and in the use of the procedure.

In 2005 the ECJ rejected a number of requests from new Member states’ national
courts claiming that it lacked jurisdiction rationae materiae. It said that even
though the plaintiff argued that national legislation is contrary to a higher norm
of national law and a European provision, this was outside the scope of European
law, that the subject-matter of the case wasn’t similar to situations contemplated
in the treaties and that therefore it lacked jurisdiction59. What these cases show
is that, since these Member states accessed to the European Union quite recently,
they already had a rich national procedural background. The situation was
uneasy for the ECJ because they actually had to impose a European dimension
upon a complete national legal system in a quite artificial way60.

The ECJ also rejected a number of requests because it considered that it lacked
competence ratione temporis. It held that it could not accept preliminary ruling
because the facts of the case in the main proceedings predated the new Member
state’s accession to the European Union61. This reasoning is quite problematic.
First of all, the ECJ does not explain itself on why it says so. This narrow
approach also completely ignores the factual reality in which the new Member
states have been applying European law even before their accession. Most
European directives were implemented into the national legal system by the
Europe Agreements, which came into effect well before the accession of the
Member states62.

Moreover, as Advocate General Tizzano argues, when national law regulates the
same situation and adopts the same solution as European law; it is in the Union’s

59 See Case Frantisek Koval’sky v. Mesto Presov, Case C-302/06, ECR 2007.
60 M. BOBEK, ‘Learning to talk: preliminary rulings, the courts of the new
member states and the Court of Justice’, CML Rev., 2008, p. 1615
61 See Case Ynos kft. Janos Varga, Case C-302/04, ECR 2006 ; Case Lakép kft, Par-

Bau kft and Rottelma kft v. Komaron-Esztergom Mehyei Kozigazgatasi Hivatal,


Case C-261/05, ECR 2006 ; Case Ceramika Paradyz sp.z oo v. Direktor Izby
Skarbowej w Lodzi, Case C-168/06, ECR 2007.
62 M. BOBEK, op. cit., p. 16156

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interest to be able to intervene via preliminary ruling to avoid future divergences
in interpretation63.

These decisions made in the years following the accession have a negative effect
on the use of preliminary reference procedure by the new Member states. Their
referrals are often rejected, and they have become more and more reluctant to
make such requests.

Nevertheless, the situation is changing and the use of preliminary reference is


developing. The new Member state’s national courts have gradually been
immersed in the European logic and have understood the use of preliminary
reference procedure.

Section 3. Factors affecting the use of the preliminary reference procedure

Various arguments have been put forward as to explain the difference in the
quantity of use of preliminary ruling in a Member state. We are going to put
forward and discuss some of these main arguments following the reasoning set
out by Carrubba & Murrah64.

The first factor they envisage is the variation in Transnational Economic Activity.
Several authors65 claim that countries in which there is a large amount of
transnational economic activity tend to produce more preliminary rulings.
Economic actors became increasingly more important whilst benefiting from the
common market. Governments therefore came under more pressure to pass
European legislation to regulate the common market which caused an increase
in the opportunities of challenging European law.

Second, there is the claim that a legal culture of a country can affect a court’s
willingness to make preliminary references. When a judge refers to the ECJ he
has to accept that he is actually exercising a review upon national law in
application of European law. Scholars argue that courts that are already capable

63 See Case Massam Dzodzi, Case C-197/88 and C-197/89, ECR 1990.
64 C. CARRUBA and L. MURRAH, ‘Legal integration and the use of preliminary
ruling process in the European Union’, The MIT press, vol. 59, n° 2, 2005, p. 404.
65 Of which for example Stone Sweet and Brunell.

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of exercising judicial review in their national legal order are more willing to
adopt the preliminary system. Judges who are without the power of judicial
review will be likely to refer fewer cases to ECJ66.

Nevertheless, the numerical results prove that Member states with judicial
review do not make more references to the ECJ than those without67.

The hypothesis of variation of legal doctrines has also been envisaged. Monist
states, in which international treaties are directly applicable, tend to make it
easier for the national judges of that state to accept the notion of direct effect.
This implies that there would be higher levels of preliminary references in
monist member states because of a greater willingness of the judges to make
references. In dualist states, in which legislative action is needed for the
international treaties to have effect, there would be less willingness from the
judges to refer to the ECJ68.

This argument is plausible, but the opposite effect could be true too.
International treaties do not have direct effect in dualist countries and that need
transposition into national law. Problems of interpretation and application can
be invoked by individuals, for which the national judge will have to refer to the
ECJ.

The facts show that disputes over the applicability of European law arise more
frequently in dualist systems than in monist systems69.

Legal literature also focuses on the role of public opinion on European


integration, which will put pressure on the national judge. The less favourable
the public is towards European integration, the less likely the national judge will
refer the matter to the ECJ70.

Authors also claim that awareness of the possibility of referring to the ECJ of
individuals plays a role too. The more people are politically informed, the more

66 C. CARRUBA and L. MURRAH, op. cit., p. 406.


67 C. CARRUBA and L. MURRAH, ibidem, p. 419.
68 C. CARRUBA and L. MURRAH, ibidem, p. 407.
69 C. CARRUBA and L. MURRAH, ibidem, p. 419.
70 See Mattli and Slaughter (1998).

16
they will use this option of requesting a preliminary ruling in order to protect
their rights71.

Carruba and Murrah add several control variables to the factors explained above.
The first variable is the amount of time that the preliminary reference procedure
is available in the Member states. For the founding members of the European
Union, the procedure has been available since 1963. Major treaty revisions also
have an impact on the preliminary reference procedure, since they expanded the
scope of European obligations and therefore increased possible litigation. Their
final variable is linked with the trade argument mentioned above, that is the GDP
per capita and trade to GDP ratio72.

All these variables show that there is no single, mono-causal argument for
explaining the development of legal integration. There are factors concerning the
European institutions and factors concerning the Member states that will
influence the use of preliminary reference procedure.

The European legal order is not to be perceived as a top-down mechanism, but


rather as a connected network in which the balance between the ECJ and the
Member states is fragile; and in which every action undertaken in one of these
legal orders, will have an effect on the other legal order. In other words, the ECJ
(and more generally, the European legal order) and the Member states are
mutually dependent.

Section 4. The efficiency of the preliminary reference procedure

Many authors have discussed the efficiency of the preliminary reference


procedure. Some of these authors, of which Jan Komarek criticize it and put
forward alternative mechanisms73.

Komarek suggests limiting the possibility to refer only to last instance courts.
This rule would have two exceptions: 1. The lower court must stay proceedings
and refer to the ECJ when is considers that one or more arguments for invalidity

71 C. CARRUBA and L. MURRAH, op. cit., p. 410.


72 C. CARRUBA and L. MURRAH, ibidem, p. 412-413.
73 J. KOMAREK, op. cit., p. 467-491.

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are well founded. 2. A possible exception for the Council to decide which
European law measures can be subject to preliminary references from lower
courts74.

He argues that the actual system is unsatisfying. The current procedure shows a
distrust of national courts, and at the same time the goal of uniformity is pushed
too far and is being used to justify the ECJ’s extreme intervention into the
national judicial order75. It neglects judicial hierarchies when providing for a
dialogue between a national judge and the ECJ. The procedure covers too
divergent types of procedures concerning different areas of law. This is
particularly detrimental regarding the time it takes to obtain a ruling from the
ECJ.

The expedited procedure provided for in art. 104a of the Rules of Procedure is
not a tool to reduce the backload of work of the ECJ. It can only be used in
exceptional urgency and is not of systematic use. Neither is the simplified
procedure found in art. 104(3), which is barely used76.

The shortening of the judgements on preliminary ruling does not speed up the
procedure either. The ECJ may do so because national courts may not be
interested in long explanations, but if it does so it loses legitimacy, credibility and
accuracy. Due to this, courts may be less willing to follow their judgements and
the purpose (the uniform application of European law) of the preliminary ruling
is compromised77.

The ECJ must be seen as being part of the national judicial orders, not ‘outside’ of
it. It’s a supreme court that will guide national courts in their interpretation of
European law. As a supreme court it should only deal with the important cases,
nevertheless the ECJ contradicts this and accepts preliminary rulings from all
national courts in the name of protection of individual rights. They emphasize

74 J. KOMAREK, ibidem, p. 467.


75 M. DOUGAN, National Remedies before the Court of justice. Issues of
Harmonisation and Differentiation, 2004, Hart Publishing, p. 134.
76 J. KOMAREK, op. cit., p. 469.
77 E. BARBIER DE LA SERRE, ‘Accelerated and expedited procedures before the

EC courts: A review of the Practice’, C.M.L. Rev., 2006, p. 796-801.

18
the protection of these rights because the ECJ builds its legitimacy and authority
on its direct relationship with the European citizens. These individuals are also
important regarding the enforcement of European law within the Member
states78.

There’s a need of taking into account the hierarchy in the national judicial order
to achieve a functioning judicial system. The current preliminary system has
detrimental effects not only for the national judge but also for the whole
European system. The entitlement to make a reference should be limited to the
higher courts. The higher courts make the least number of references to the ECJ
and some interpret this as a sign of reluctance towards the European
institutions. This could also be seen in another light; it could be that they actually
need less references than the first instance courts because they are more
competent to deal with complex legal questions. The first instance courts
complete different tasks than the higher courts. The former need to establish the
facts, hear the plaintiff and defendant, and are therefore much closer to the
parties. It is more difficult for them to detach themselves from the ‘human
drama’ and to see the case in a broader societal perspective. The Supreme court
doesn’t have to deal with facts and can surpass the specific case to see it in a
broader light taking into account the effects that the ruling will have on society79.

The problem is that when first instance courts make a reference, the ECJ will be
much more concerned by the particular facts and inclined to judge the particular
case, instead of looking for the appropriate interpretation of law80.

It could also have another negative consequence. When a lower court has already
referred the matter to the ECJ, higher courts could become unwilling to refer the
same case again to the ECJ when they should, because this would delay the
procedure even more81.

78 D. CHALMERS, ‘Judicial preferences and the Community legal order’, M.L.R.,


1997, p. 197.
79 J. KOMAREK, op. cit., p. 484.
80 S. PRECHAL and B. VAN ROERMUND, The coherence of EU law: the search for

unity in divergent concepts, Oxford, Oxford university press, 2009, p. 500.


81 S. PRECHAL and B. VAN ROERMUND, ibidem, p. 505.

19
A ‘European certiorari’ could be set up82. Different authors have envisaged this
possibility but the question remains: who would select the cases and on what
grounds? Chalmers for example, suggested that a judge of the ECJ and a senior
judge from the national jurisdiction would decide together whether a reference
made by a ruling would be appropriate, instead of a selection committee83. But
why these individuals? And what guarantees an objective outcome?

The preliminary reference procedure as promoted by Komarek sees national


courts as true parts of the European judicial system. It also sees the ECJ as a
supreme court of the Union with authorative guidance, acting clearly and
persuasively. This cannot be achieved when the ECJ hears thousands of requests
by national courts and that because of the backload of work it delivers
contradictory and insufficiently reasoned answers.

Conclusion

The preliminary reference procedure exists sine 1963 and has clearly served its
purpose that is ensuring the correct application and the uniform interpretation
of European law and guaranteeing equal access to rights of all European citizens.
The overload of preliminary reference procedures is a problem that needs to be
coped with, but it also shows the great success of this mechanism. Komarek’s
suggestion seems appropriate to reduce the amount of preliminary reference
made but one may wonder if such a radical change of the system that has been
used for almost fifty years will be accepted by the Member states. Maybe small
changes like increasing the number of judges (which is what the ECJ has already
done) will help the backload of work of the ECJ without having too much
objection of the Member states. This aspect is extremely important because more
and more Member states feel that their national sovereignty is damaged by the
European activity going too far.

82 L. HEFFERNAN, ‘The Community courts Post-Nice : A European Certiorari


revisited’, I.C.L.Q., 2003, p. 907.
83 D. CHALMERS, op. cit., p. 190.

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The preliminary reference procedure may not be the fastest or the most efficient
procedure, but it is based on mutual respect and collaboration, which is the
foundation on which the European Union is built and which gives it a good
possibility to be a long-lasting procedure establishing interaction between
national courts and the ECJ.

Table of Contents

INTRODUCTION ................................................................................................................................. 1

CHAPTER 1. THE PRELIMINARY REFERENCE PROCEDURE ............................................... 1

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SECTION 1. THE CONTENT OF THE PRELIMINARY REFERENCE PROCEDURE.......................................... 1
SECTION 2. THE PURPOSE OF THE PRELIMINARY REFERENCE PROCEDURE .......................................... 3

CHAPTER 2. THE FUNCTIONING OF THE PRELIMINARY REFERENCE PROCEDURE .. 5

SECTION 1. BODIES COMPETENT TO REFER ................................................................................................. 5


SECTION 2. THE DECISION TO REFER ............................................................................................................ 6
SECTION 3. HOW TO REFER ............................................................................................................................ 8
SECTION 4. THE EFFECTS OF REFERRAL....................................................................................................... 9

CHAPTER 3. THE EFFICIENCY AND USE OF THE PRELIMINARY REFERENCE

PROCEDURE ......................................................................................................................................10

SECTION 1. OLD MEMBER STATES ............................................................................................................. 11


SECTION 2. NEW MEMBER STATES ............................................................................................................ 13
SECTION 3. FACTORS AFFECTING THE USE OF THE PRELIMINARY REFERENCE PROCEDURE............ 15
SECTION 4. THE EFFICIENCY OF THE PRELIMINARY REFERENCE PROCEDURE ................................... 17

CONCLUSION .....................................................................................................................................20

BIBLIOGRAPHY

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