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PRELIMINARY REFERENCES to the EUROPEAN COURT of JUSTICE Second Edition PRELIMINARY REFERENCES TO THE EUROPEAN COURT OF JUSTICE Second edition Morten Broberg and NielS Fenger http://www.pbookshop.com Preview - Copyrighted Material 9780198704027_Broberg_Preliminary_References_to_the_European_Court_of_Justice.indb 3 1/13/2014 4:03:21 PM Great Clarendon Street, Oxford, OX26DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © M Broberg and N Fenger 2014 The moral rights of the authors have been asserted First Edition published in 2010 Second Edition published in 2014 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2013950991 ISBN 978–0–19–870402–7 Printed and bound in Great Britain by CPI Group (UK) Ltd, Croydon, CR0 4YY Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials http://www.pbookshop.comcontained in any third party website referenced in this work. Preview - Copyrighted Material 9780198704027_Broberg_Preliminary_References_to_the_European_Court_of_Justice.indb 4 1/13/2014 4:03:22 PM 1 REFERENCES FOR PRELIMINARY RULINGS 1. Introduction 1.1. Preliminary Rulings in the European Union’s Judicial System A reference for a preliminary ruling is a request from a national court of a Member State to the Court of Justice of the European Union to give an authoritative inter- pretation on an EU act or a decision on the validity of such an act. In this situation the Court of Justice does not function as a court of appeal which rules on the out- come of the main proceedings before the referring court: it makes judgment nei- ther on the facts in the main proceedings nor on the interpretation and application of national law. Moreover, in principle, it does not pronounce itself on the concrete application of EU law in the main proceedings before the referring court. Finally, while a preliminary ruling is normally given in the form of a judgment, the ruling is addressed only to the referring court, but not to the parties to the main proceed- ings. Only the referring court’s subsequent decision can be enforced against those parties. As a matter of principle, the preliminary reference procedure is therefore an expression of an interplayhttp://www.pbookshop.com and allocation of tasks between national courts and 1 the Court of Justice.Preview It is this interplay - Copyrighted which is the subject Material of this book. Already the Treaty establishing the European Coal and Steel Community (ECSC)— the first stone laid in founding the European Union—from 1951 made provi- sion for the preliminary reference procedure.2 However, it has been Article 267 1 For a discussion as to whether the relationship between national courts and the Court of Justice is in reality hierarchical or rather has the character of cooperation between equals see T de la Mare and D Donnelly, ‘Preliminary Ruling and EU Legal Integration: Evolution and Stasis’ in P Craig and G de Búrca (eds), The Evolution of EU Law (2nd edn, 2011), 363, 377–8, and A Dashwood and AC Johnston, ‘Synthesis of the Debate’ in A Dashwood and AC Johnston (eds), The Future of the Judicial System of the European Union (2001), 55, 58–9. 2 Art 41. The ECSC Treaty expired on 23 July 2002. However, the Court of Justice has ruled that it continues to have jurisdiction to interpret ECSC measures, see Case C-119/05 Lucchini [2007] ECR I-6199, para 41. 1 9780198704027_Broberg_Preliminary_References_to_the_European_Court_of_Justice.indb 1 1/13/2014 4:03:33 PM Preliminary References to the European Court of Justice TFEU (originally Article 177 and subsequently Article 234 in the Treaty of Rome of 1957) that has ensured the prominent position of the preliminary reference pro- cedure on the legal map of Europe. By this provision the six original Member States of the European Economic Community gave their national courts the possibility, and in some cases the obligation, to make preliminary references. This Article states as follows: The Court of Justice of the European Union shall have jurisdiction to give prelimi- nary 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 neces- sary 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. The preliminary ruling procedure has several important functions: • It gives national courts access to help in resolving interpretative issues concern- ing EU law. • It helps to ensure the uniform interpretation of EU law throughout the Union. • It helps to ensure the effective application of EU law, just as it contributes to domesticating EU law and moving EU law away from assuring compliance only through a system of international surveillance so that it also contains a supplementary system of private enforcement that is not influenced by political discretion. http://www.pbookshop.com • It plays an important role in the political integration of the EU.3 Preview - Copyrighted Material Preliminary rulings have played a crucial role in the development of EU law, and some of the most fundamental principles of EU law have been laid down in connec- tion with preliminary rulings. This includes, for example, such central principles as 3 This fourth aspect will not be dealt with in this book. The question is dealt with by, among others, H Rasmussen, On Law and Policy in the European Court of Justice (1986), chs 8 and 14; J Weiler, ‘Journey to an Unknown Destination: A Retrospective and Prospective of the European Court of Justice in the Arena of Political Integration’, Journal of Common Market Studies, 31(4) (1993), 417, 421ff; M Maduro, We, the Court: The European Court of Justice & the European Economic Constitution (1998), 9, 26ff; A Burley and W Mattli, ‘Europe Before the Court: A Political Theory of Legal Integration’, International Organization, 47(1) (1993), 41–76; W Mattli and A Slaughter, ‘Revisiting the European Court of Justice’, International Organization, 52(1) (1998), 177–209; and J Pitarakis and G Tridimas, ‘Joint Dynamics of Legal and Economic Integration in the European Union’, European Journal of Law and Economics, 16(3) (2003), 357–68. 2 9780198704027_Broberg_Preliminary_References_to_the_European_Court_of_Justice.indb 2 1/13/2014 4:03:34 PM 1. References for Preliminary Rulings direct effect and supremacy of EU law. One consequence of the preliminary ruling procedure has been to bind the national courts more closely to the Court of Justice. This has meant that these courts, functionally speaking, also act as EU courts. Or, in the words of the Court of Justice ‘the tasks attributed to the national courts and to the Court of Justice respectively are indispensable to the preservation of the very nature of the law established by the Treaties’.4 As Article 267 has direct effect, many Member States have made no supplemen- tary national legislation regulating when and how a preliminary reference should be made or how a preliminary ruling should be applied by the national courts. Instead, such questions are often regulated by a combination of case law of the Court of Justice and general procedural codes of the different Member States. 1.2. The structure of this book This book examines the different aspects of the preliminary reference procedure. It is divided into 13 chapters which broadly mirror the order in which the various issues connected with a reference under Article 267 arise for a national court. In this introductory chapter we first give an account of the development of the preliminary procedure (section 2). Thereafter we give a brief outline of the different types of preliminary references in the EU system (section 3). We then give a short account of the broadly similar reference procedure laid down in the European Economic Area (EEA) Agreement (section 4) followed by an account of other ways of obtaining guidance on interpretation of EU law, namely questions to the Commission and the European Ombudsman (section 5). The chapter ends with a discussion of what future changes one might envisage for the preliminary reference procedure in the coming years (section 6).
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