THE PRELIMINARY RULINGS PROCEDURE
1.
INTRODUCTION
·
Article
267 TFEU allows any ‘court or tribunal’ of a Member State to request the ECJ to
interpret provisions of EU law (the TEU, the TFEU and secondary legislation in
the form of regulations and directives).
·
The
ECJ interprets
EU law: the national court or tribunal then applies
that law, as interpreted.
·
Having
one court to interpret all EU law ensures the same meaning is given throughout
the Union. Emphasized in Stauder v Ulm: “the necessity for
uniform application and accordingly for uniform interpretation”.
·
The ECJ generally follows its own previous rulings,
although it is not bound to do so and occasionally does overrule itself (see Keck & Mithouard).
·
The
ECJ usually adopts a “purposive” approach to interpretation, seeking to
interpret ambiguous EU law in a way which most promotes the purpose behind the
legislation (Adidas).
2. ‘ANY
COURT OR TRIBUNAL’
·
Only
a ‘court or tribunal’ may request a ruling. This phrase has been interpreted
very widely (Dorsch Consult). The
factors that may be taken into account include
whether the body:
o
is established by law,
o
is permanent,
o
has compulsory jurisdiction,
o
has an inter partes procedure,
o
applies rules of law, and
o
is independent.
·
It
is certainly not required that a body have the name ‘court’ or ‘tribunal’. For
example, in Gebhard a reference
request form the Italian National Bar Council
was accepted. In Jia a reference request
from the Alien Appeals Board in
Sweden was accepted and in Wood a
reference request from the Compensation Commission
for Victims of Crime in France was accepted.
·
Conversely,
an arbitrator is not a ‘court’, because of the lack of compulsory jurisdiction
(Nordsee, Denuit & Cordenier). For more
obvious reasons, a public prosecutor is not a ‘court’ (Criminal Proceedings Against X).
·
There
are limits. It is crucial that a body carries out a judicial function. A purely
administrative body is not a court because it does not apply rules of law (Victoria Film). Even
a court may not be a ‘court’ if it is carrying out a purely administrative
function (Job Centre; Salzmann; Lutz).
·
Independence
is crucial. If independence is lacking the ECJ will not respond (Schmid). The referring body must have no
connection with any other body (Corbiau; Schmid). It must be protected against
external pressure or influence (Wilson).
The members of the referring body must be impartial (Wilson).
·
In
Alpe Adria Energia, A-G
Ruiz-Jarabo Colomer complained that the ECJ had become too generous with the
interpretation of ‘court or tribunal’, opening up the PR procedure to
“quasi-judicial bodies”. He invited the Court to “lay down a stricter and more
consistent body of rules” on admissibility. However, the Court declined to do
so.
3. DOCKET CONTROL
·
Provided
that the question referred to the ECJ is one of interpretation or validity, the
ECJ is bound in principle to
respond.
·
However,
there are some situations when requests have been declared inadmissible:
1.
Irrelevance
– the ECJ will reject questions where it is “quite obvious” that the question referred to the ECJ bears no relation to the actual nature of the case or the
subject-matter of the case (BP Supergas). The Court
will also reject questions that do not actually involve EU legislation at all (Vajnai; AgafiĊ£ei &
Others).
2. Hypothetical questions – as in Meilike v Meyer and Foglia v Novello. The ECJ will refuse to answer a question which
is not necessary to enable the national court to resolve a genuine dispute.
3. Lack of factual and/or legal context – it is “necessary that the national court define the
factual and legislative context of the questions it is asking” (Telemarsicabruzzo).
4. MANDATORY
REFERRAL
·
Under
Article 267 (2), any court or tribunal ‘may’ make a request. However, under
Article 267 (3), courts or tribunals, against whose decisions there is no ‘judicial
remedy’ under national law, ‘shall’ refer. These are the “courts
of last resort”. In the UK, the Supreme Court must, therefore, refer cases to the ECJ where a point of EU law is
involved (unless one of the exceptions apply – see below). All other courts and
tribunals have discretion.
·
Where
a court’s decision can be challenged in theory (even if in practice it requires
the grant of leave to appeal from the court above it in the hierarchy) then it
is not a court of last resort (Lyckeskog).
The right to seek leave (even if none is forthcoming) is still a ‘judicial
remedy’. It is possible that a court such as the Court of Appeal could exceptionally
find itself subject to para (3) if in a particular case but only if there was
no possibility of even seeking leave to appeal (Chiron v Murex (1995)).
Exceptions to mandatory referral
Despite the clear
obligation under Article 267 (3), the ECJ has identified three situations when
a reference is not obligatory, even for “courts of last resort”.
1. Irrelevance
·
In
CILFIT, the ECJ held that there is no
obligation to refer questions to the ECJ where the question was not relevant to
the case. Indeed, if such as question were asked it would be declared
inadmissible anyway (see the previous section).
2. Previous Rulings
·
In Da Costa,
the ECJ decided that there
is no obligation to seek a ruling on a question when the same question
has already been answered in a previous case.
3. Acte Clair
·
According
to CILFIT, “the correct application
of [EU] law may be so obvious as to leave no scope for any reasonable doubt as
to the manner in which the question raised is to be resolved.” This is acte clair (literally, clear act).
·
However,
acte clair must be used with caution:
“Before it comes to the conclusion that the correct application of [EU] law is
obvious [the national court or tribunal] must in particular be convinced that
the matter is equally obvious to the courts of the other Member States and to
the Court of Justice” (Intermodal Transports).
·
The
CILFIT criteria apply, including “bearing
in mind” potential linguistic differences.
·
Acte clair is controversial
because it allows “courts of last resort” to decline to seek a ruling when the
answer is obvious to them, creating the possibility of divergence between
Member States. The CILFIT criteria
are meant to protect against abuse, but have been largely ignored in practice,
by both the House of Lords and Supreme Court in the UK.
5. THE
URGENT PROCEDURE
·
Introduced
in 2008. Allows exceptional / sensitive
cases to be fast-tracked. The first case, Rinau,
involving a child custody dispute, was decided within 8 weeks. Santesteban Goicoechea, involving extradition proceedings, was decided
within 6 weeks.
·
Excessive speed could be counter-productive. Judges
need time to reflect on the questions referred to them, time to assess the
various arguments put forward during the case, and time to consider the “wider
ramifications” of their conclusions.
·
Not a long-term solution to the problems of delay
(see below), as it just allows exceptional / sensitive cases to go to the
front of the queue – all other cases just get moved down the queue.
6. THE
NEED FOR REFORM AND THE ROLE OF THE GENERAL COURT
· The ECJ is faced with
a backlog of cases, although it is not as bad now as it has been. In 2012, the
average waiting time (from a national court requesting a ruling until the
ruling itself) was 15.7 months, down from the all-time high of 25½ months (in
2003). That is a significant improvement – but it may only be temporary. The
number of requests for rulings has been steadily increasing since 2005,
reaching an all-time high of 423 in 2011.
· If the waiting time
goes back up, national judges may be inhibited from asking questions, instead
attempting to answer the questions themselves, which threatens the whole point
of the preliminary rulings procedure (the need for uniform application of EU
law), individual rights (if the judges
get the answer wrong) and the “co-operation” between the ECJ and the national
courts.
· The backlog has been
caused by (amongst other things):
The
width of the ECJ’s own definition of ‘court or tribunal’.The
expansion of the EU (from 6 to 27 Member States), allowing more courts and
tribunals to refer questions.The
associated growth in the number of official EU languages.The
ever-increasing scope and volume of EU secondary legislation.
Conferral
of Jurisdiction on the General Court
- In the future, some
preliminary rulings may be transferred to the General Court under Article
256(3) TFEU, in ‘specific areas’ of EU law.
- Although this
reform was agreed in 2000, no ‘specific areas’ have yet been decided.
- There will be
the possibility of further reference to / review by the ECJ.
- Potential
problems: (1) The General Court ‘may’ refer cases onto the ECJ when a
‘decision of principle’ is involved – what does this mean? (2) The ECJ may
review General Court rulings, which undermines the authority of those
rulings.
7.
REFORM OF THE PRELIMINARY RULINGS PROCEDURE
Other
reform proposals include:
v Appointing more
judges;
v Restricting the range
of national courts with the discretion to seek rulings;
v Allowing the ECJ to
filter questions;
v Setting up regional
courts with EU legal specialism (decentralisation).
All of these proposals would reduce the
workload of the ECJ and hence reduce the time-delay… but at what cost?
v Appointing more judges may lead to inconsistencies between
the ECJ’s chambers, threatening uniformity by undermining the whole point of
the preliminary rulings procedure. It may also lead to a decline in the quality
of judgments.
v Restricting national courts’ ability to seek rulings threatens uniformity
as those courts will have to decide questions of EU law themselves with no
assistance from the ECJ. May lead to more appeals in national courts as
litigants try to get a case into a national court which has retained the power
to request rulings.
v Case Filtering may undermine the “co-operation” that exists
between the ECJ and national courts and tribunals. May deter national courts
from seeking rulings, leading to inconsistency of interpretation in different
Member States.
v Decentralisation threatens uniformity. Setting up several new
courts will incur considerable cost in terms of infrastructure, staffing,
communications and IT.
