Guide to preliminary ruling proceedings before the Court of Justice of the European Union Updated: 1 April 2013 Foreword This guide to preliminary ruling proceedings before the Court of Justice of the European Union aims to make practical suggestions based on experience acquired in the matter in the Netherlands. The guide was issued under the supervision of European law coordinators for the Dutch courts, with final editing being performed by Messrs. J. Kuiper (former Vice-Chairman of the College van Beroep voor het Bedrijfsleven, the Dutch Appeals Court for Trade and Industry) and R. H. Lauwaars (former member of the Raad van State, the Dutch Council of State). This guide is meant for information purposes only and is not binding in any respect. See also: Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings and Guide de la jurisprudence communautaire sur l'article 234 (Guide to Community case law in Article 234, available in French only), published by the Court of Justice. Expand all General Role of the national court The legal order established by the EC Treaty links the national courts of the European Union. Case 14/68, Walt Wilhelm, recital 6. The national court is responsible for protecting the rights that litigants derive from EU law and is bound to apply EU law in its entirety, refusing to apply any provisions of domestic law that contravene it. Case 33/76, Rewe-Zentralfinanz, para. 5. Case 106/77, Simmenthal III, para. 21. When performing this task, the national court may cooperate with the Court of Justice of the Europe Union by using the preliminary ruling proceedings established in Article 267 267 of the Treaty on the Functioning of the European Union (hereafter referred to as "the TFEU", former Article 234 EC, and Articles 68 EC and 35 TEU). Although Article 267 gives the Court general jurisdiction, there are various provisions introducing exceptions and derogations. Articles 275 and 276 TFEU set out specific rules. Article 10 of Protocol no. 36 on the transitional provisions of the Lisbon Treaty (OJ C 83 of 30 March 2010, pp. 322-326) contains transitional provisions for the application of proceedings on acts adopted on the basis of Titles V and VI of the Treaty on European Union prior to the entry into force of the Lisbon Treaty. Characteristics and functions of preliminary ruling proceedings The Court of Justice and the national courts are deemed equivalent judicial bodies. Consequently, the preliminary ruling proceedings are not characterised by hierarchy but by cooperation which requires the national court and the Court of Justice - each within its own jurisdiction – to make direct contributions to achieve a decision that guarantees uniform application of EU law in all Member States. The Court of Justice only rules on the interpretation or validity of the relevant dispositions of EU law. It falls to the national court to assess the legality of the legal rule or legal act for domestic law, in light of the Court's response to the preliminary question. Case 16/65, Schwarze The most important function of the preliminary ruling proceedings is to ensure a uniform interpretation of EU law. Secondly, the proceedings facilitate the application of EU law by offering national courts a helping hand in resolving the problems that sometimes accompany the application of EU law. Case 166/73, Rheinmühlen, para. 2-3 Thirdly, the preliminary ruling proceedings may serve as a means to protect the rights that citizens derive from EU law. Preliminary ruling proceedings in short The rules for proceedings before the Court of Justice are laid down in the Protocol no. 3 on the Statute of the Court of Justice and the Rules of Procedure of the Court of Justice. Request The proceedings start with a request from a national court, which submits to the Court of Justice the decision to which the preliminary question relates and a copy or summary of the file for the proceedings. This is done in the language of the national court. The decision to refer (summarised if necessary) is translated into all other official languages of the Union, but the proceedings file is not. It is then transmitted to the parties in the main action, the Member States and the Commission. The Court of Justice may ask the referring court to provide further clarification. Hearing of the case The parties, the Member States, the Commission and, where appropriate, the European Parliament and the Council have only one opportunity to submit written observations. After the judge-rapporteur has delivered his or her report for the hearing, the parties and the authorities and institutions mentioned above may ask for the Court to handle the case orally so that they can elucidate their viewpoint at the hearing. A few weeks or months after the hearing, the Advocate-General will deliver his or her conclusions. The parties cannot give their reaction to these. By virtue of the final paragraph of Article 20 of the Statute of the Court of Justice, the Court may decide, after hearing the Advocate-General, that the case shall be determined without a submission from the Advocate-General. Judgment A few weeks or months after the Advocate-General has delivered his or her conclusions, the Court of Justice will issue judgment in open court. The Court informs the parties concerned of its judgment beforehand. The judgment is then announced to all parties and to the court that referred the preliminary question. It is binding for all judicial bodies that may have to hear the substance of the case. Other courts can either follow the interpretation provided or refer to the Court of Justice. The Court's interpretation is applicable from the entry into force of the provision that the Court interpreted. Interpretation The Court may be asked to interpret the Treaty and all of the acts – without exception – of the European institutions and the European Central Bank. Case C-11/05, Friesland Coberco Dairy Foods, para. 36. The term "acts" also covers the international agreements concluded by the European Union. Case C-192/89, Sevince, para. 8-10. The national courts and the EU courts operate independently of one another. The Court of Justice does not evaluate the reasons of a national court for deeming that the interpretation of a provision of EU law is necessary for giving judgment in a pending case. It is for the Court of Justice to issue the interpretation of the provision and for the national court to apply it subsequently. Case 5/77, Tedeschi/Denkavit, para. 17-20. Validity The Court of Justice is the only court with jurisdiction to rule on the validity of acts of the EU institutions, i.e. regulations, directives and decisions. In preliminary ruling proceedings concerning the validity, all the grounds for declaring such acts void (Article 263 TFEU – former Article 230 EC) may be put forward, i.e. lack of competence; infringement of an essential procedural requirement; infringement of the treaty or any rule of law relating to its application; and misuse of powers. In addition, the Court of Justice may review the validity of acts in the light of general principles of EU law which are binding on the Union and which have direct effect. Joined cases 21-4/72, International Fruit Company, para. 5 and 6 Joined cases C-300/98, Parfums Christian Dior SA, para. 42 A national court may reject the grounds of invalidity, but it has no power to declare EU decisions to be void. However, if a national court has serious doubts as to the validity of an act of an EU institution on which a national law or decision is based, the court may, in special cases, suspend the application of such act or may order any other interim relief with regard to such act. The national court should subsequently refer the question of validity to the Court of Justice, setting out why it believes that the Community act must be considered invalid. Case 314/85, Foto-Frost, para. 13-20 Joined cases C-143/88 et C-92/89, Zuckerfabrik, para. 23-32 Case C-465/93, Atlanta, para. 28-32 Exceptions and derogations By virtue of the first paragraph of Article 275 TFEU, the Court of Justice does not have jurisdiction with respect to the provisions relating to the common foreign and security policy nor with respect to acts adopted on the basis of those provisions. However, the Court does have jurisdiction to monitor compliance with Article 40 TEU and to rule on appeals, brought in accordance with the conditions laid down in the fourth paragraph of Article 263 TFEU, reviewing the legality of decisions providing for restrictive measures against natural or legal persons adopted by the Council on the basis of Chapter 2 of Title V of the Treaty on European Union (Article 275, paragraph 2, TFEU). Furthermore, the Court of Justice does not have jurisdiction to review the validity or proportionality of operations carried out by the police or other law enforcement services of a Member State or the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security (Article 276 TFEU, see former Article 35 TEU). The entry into force of the Treaty of Lisbon led to the deletion of Article 35 TEU, which provided for exceptional preliminary ruling proceedings for police and judicial cooperation in criminal matters. These proceedings were optional, in the sense that a Member State had to explicitly accept them. Furthermore, the Member State could choose to authorise all courts to request preliminary rulings, or only the highest courts. In accordance with Article 10, paragraph 1, of the Protocol on transitional provisions, the powers of the Court of Justice under Title VI TEU, in the version in force before the entry into force of the Treaty of Lisbon, shall remain the same for five years, i.e. until 1 December 2014, including where they have been accepted under Article 35 (2) TEU. Accelerated preliminary ruling procedure A simplified procedure may be applied, by virtue of Article 104(3) of the Rules of Procedure of the Court of Justice, when a question referred to the Court for a preliminary ruling is identical to a question on which the Court has already ruled, or where the Court has not yet provided an answer to such a question by there can be no reasonable doubt as to what the answer should be (see acte clair and acte éclairé). The Court shall decide whether these conditions have been met, after hearing the parties and the Advocate-General. By virtue of Article 104a of the Rules of Procedure, the President may exceptionally decide to apply an accelerated procedure to a reference for a preliminary ruling where the circumstances referred to establish that a ruling on the question put to the Court is a matter of exceptional urgency. The Court of Justice is very reluctant to apply such procedures (a few of the rare examples include cases C-189/01, Jippes, and C-127/08, Metock). In addition, an expedited procedure (PPU) was introduced on 1 March 2008. This procedure is applied for references relating to the areas mentioned in Title V of the third part of the TFEU, namely freedom, security and justice (see Article 23 of the Statute of the Court of Justice and Article 104b of the Rules of Procedure of the Court). (For the first application of PPU, see case C-195/08 PPU, Rinau, para. 43-46, and in criminal law, case C-388/08 PPU, Leyman and Pustarov). Article 267, (4) TFEU provides that if a preliminary 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 shall act with the minimum of delay. See the report on the use of the urgent preliminary ruling procedure by the Court of Justice. When to refer Non obligatory reference By virtue of Article 267 (2) TFEU, a national "court or tribunal" ask the Court to give a preliminary ruling if it considers that a decision on the question is "necessary" to enable it to give judgment. However, the Court of Justice has decided that a national court or tribunal must request a preliminary ruling if it considers that an act of the Union is not valid or wishes to prevent its application for that reason. "Court or tribunal" When assessing whether the referring body is a court or tribunal as understood by Article 267 TFEU, the Court of Justice takes into account a number of factors. Case C 54/96, Dorsch Consult, para. 23 Case C 178/99, Doris Salzmann, para. 13-15 "Necessary" According to the Court of Justice it is up to the national courts (both the lower courts and the highest court(s)) to decide whether a preliminary ruling is required. However, a request from a national court may be dismissed by the Court of Justice if: the question is not relevant in the sense that the answer to that question, regardless of what the answer may be, in no way can affect the outcome of the case; the requested interpretation of EU law bears no relationship to the actual facts; the problem is hypothetical; or the Court has not been provided with the factual or legal material necessary to give a useful answer on the questions submitted. Case C 318/98, Fornasar et autres, para. 27 and 31 Case 283/81, CILFIT, para. 10 Case C 355/97, Landesgrundverkehrsreferent, para. 18-22 Obligatory reference By virtue of Article 267, (3) TFEU, a court is under the obligation to refer where a question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy in domestic law and the answer is necessary for the court to reach a decision. Exceptions to obligatory reference The obligation for the highest court to refer may lose its absolute character in a number of cases. However, the courts still have the option of referring in such cases. Acte éclairé The highest court is not under an obligation to refer if the question that has arisen has already been answered in an earlier judgment of the Court of Justice. Joined cases 28 30/62, Da Costa et Schaake Case 283/81, CILFIT, para. 14-15 Acte clair The highest court is not obliged to refer either if the question has not yet been answered in the case law of the Court of Justice, but the answer to that question is beyond all doubt. Before it comes to the conclusion that such is the case, the national court or tribunal must be convinced that the matter is equally obvious both to the courts of the other Member States and to the Court of Justice. In this respect the national court should bear in mind that: the interpretation of a provision of EU law involves a comparison of the different language versions of the provision concerned; terms and concepts in EU law do not necessarily have the same meaning as the laws of the various Member States; every provision of EU law should be interpreted in the light of EU law as a whole, taking into consideration its objectives and its state of development at the moment of application of the provision in question. Case 283/81, CILFIT, para. 16-20 The exceptions set out above only apply to requests for interpretation and cannot be applied to questions relating to the validity of acts of the Union. Even if the Court of Justice has declared the corresponding provisions of a similar act invalid in the past, the national courts are still required to refer. Case C-461/03, Gaston Schul, para. 19 and 25 Interim proceedings There is no obligation for the highest court to refer either when giving judgment in interim proceedings, provided that each of the parties is entitled to institute normal proceedings on the substance of the case or to require that. Joined cases 35/82 and 36/82, Morson and Jhanjan, para. 10 In principle, the court hearing the interim proceedings is also required to refer if it has any doubts about the validity of an act of the Union and wishes to preclude the act for that reason. However, in this case, the exceptions mentioned above under "Validity" come into play, i.e. application of the act may be suspended on the condition that the court immediately asks the Court of Justice to rule on the act's validity, also submitting its reasons for doubting its validity. Ex officio reference Reference is not limited to cases where one of the parties to the main action has taken the initiative of raising a point concerning the interpretation or the validity of Community law, but is also possible in cases in which a question of this kind is raised by the national court or tribunal of its own accord. Case 126/80, Salonia, para. 5-10 Case 283/81, CILFIT, para. 9 How to refer Structure of the order for reference The judgment or order in which the court submits a question for a preliminary ruling should contain a brief statement of the reasons as well as all the information necessary for the Court of Justice and for those on whom the judgment must be served (the Member States, the Commission and, when appropriate, the Council and the European Parliament) for a proper understanding of the factual and legal framework of the case. Case C 338/04, Placanica, para. 34 Elements of the order for reference Generally speaking, the Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (mentioned above) should be taken into account. It is helpful to include the following elements, or an exposition of such elements, in the judgment or order: l'objet du litige the relevant established facts; the applicable national law; the parties' positions; the reasons why the court is submitting the question to the Court of Justice; where appropriate, the court's own opinion on the issue of Community law raised; the specific question(s) in the operative part. In addition, the file of the case must be sent on to the Court of Justice together with the order for reference. See the Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings, mentioned above. In this case, refer to paras. 20-24 and 29 of the recommendations mentioned above. Phrasing of questions Hearing the parties first In the interests of the proper administration of justice, it may be useful for a national court to hear the parties about the contents of the questions before giving the order for reference. The parties' observations must be limited to the content of the questions, to remain within the framework of the dispute Case 70/77, Simmenthal, para. 10 Questions on interpretation The Court of Justice may only interpret EU law. It may not decide on questions relating to the interpretation or validity of provisions of national law, nor is it up to the Court of Justice to apply EU law to the facts in the main action. However, the Court of Justice is prepared, within certain limits, to reformulate questions. Questions on validity Only the Court of Justice has the competence to declare acts of the institutions void. The Court of Justice cannot answer questions, which are aimed at having the provisions of the Treaty declared void. Effect of the preliminary ruling A preliminary ruling binds the national court that requested the judgment as well as all bodies, which may have to decide the same case on appeal. Although the decision is binding, the court may request a second preliminary ruling in the same case. Case 29/68, Milch , Fett under Eierkontor, para. 2-3 Preliminary rulings do not bind courts in other cases. However, these courts should realise that the interpretation of the Court of Justice is incorporated in the provisions and principles of the EU law to which it relates. The binding effect of the interpretation then simply coincides with the binding effect of the provisions and principles to which it relates and which has to be observed by all the national courts of the member-states. If an act of an institution of the Community is declared void in a judgment, this is sufficient reason, not only for the referring court, but also for any other national court of the member-states, to consider that act as void. However, should the national court have doubts as to the grounds, the scope and possibly the consequences of the nullity established earlier, then this court is free to raise a question before the Court of Justice once again. Case 66/80, International Chemical Corporation, para. 18 The preliminary ruling is announced to the parties to the dispute.