What is the scope of this mechanism?
The scope of the preliminary reference procedure covers the entire body of EU law with the exclusion of certain acts under common foreign and security policy and some (diminishing in number) limitations in the area of judicial and police cooperation in criminal matters.
Thus, whenever seized to hear a case that touches upon the interpretation of any rule of EU law or the validity of a rule of EU law excluding those of primary law, the national court may or is required to stay the national proceedings, and to submit a relevant request for a preliminary ruling to the CJEU. In particular, the national court may submit preliminary questions regarding:
1) the meaning of one or more provisions of EU law, or
2) whether an EU act is legal and enforceable (valid) pursuant to the Treaties.
Which judicial bodies are considered to be “national courts” in the sense of Article 267 TFEU?
Clarifying which jurisdictional body may, under Article 267 TFEU, submit a request for a preliminary ruling is of eminent importance both to the correct use of the preliminary reference and, furthermore, to the national court. Taking, indeed, into account that the term “court” used in Article 267 TFUE refers to an EU law notion, it must necessarily be interpreted under EU law and it must be understood in the same way in all EU Member States.For this reason, the CJEU has established in its case law specific requirements for a national body to be considered as ‘court’ for the purposes of Article 267 TFEU. In particular, according to the CJEU2:
- the judicial body must be established by law;
- it must be permanent (ah doc courts are excluded);
- its jurisdiction must be compulsory (mediators are excluded);
- the procedure before it must be inter partes;
- it must apply rules of law in the settlement of the dispute before it;
- its judges must be independent and impartial.
Thus, a public prosecutor3 (ECJ C-14/86, Pretore di Salo), a bar council4 (ECJ C-138/80, Borker), the national competition commissions5, and the national Court of Auditors when it is not acting in a judicial capacity6 are not considered to be “national courts” for the purposes
of Article 267 TFEU.
What are the prerequisites for the activation of the preliminary reference mechanism?
Where a national court finds that a rule of EU law is applicable to the dispute brought before it and that court has doubts as to the interpretation of the relevant rule, or as to the validity of a relevant EU act and its compatibility with higher-ranking EU legal rules, the national court may or is required to issue an order staying proceedings and to submit to the CJEU as many preliminary questions as deemed necessary at its discretion, giving reasons for that decision. The legal counsels of the parties in national proceedings may petition the national court to submit a request for a preliminary ruling and may even indicate the question(s) to be submitted; however, it is at the national court’s absolute discretion to establish: (a) the exact moment in the pending proceedings where the latter are to be stayed and a preliminary request is to be submitted; (b) the reasons for recourse to the preliminary reference mechanism; and (c) the exact content and wording of the questions.
Nevertheless, the admissibility of a preliminary request submitted by a national court is conditional upon the existence of a “certain connection” between the case before the national court and EU Law. In particular:
Rules of EU Law must be applicable in the dispute before the national court. It is not required that those rules produce direct effect on order to be applied or interpreted by the national judge, besides the question whether an EU rule produces direct effect or not could be the subject of a preliminary reference.
The question must be relevant to the actual nature of the case or to the subject-matter of the main action and hypothetical7;
Answering the question must be necessary for the judicial resolution of the dispute and the national court must explain why8.
It should be noted that the CJEU does not, in the framework of the preliminary reference procedure, rule on the interpretation of a particular national rule or on its compatibility with EU law; a question worded in these terms would be dismissed as inadmissible or – at best – it would have to be rephrased. As a consequence, when submitting preliminary questions, national courts often opt for the following wording: «Must Article [Χ] of the Treaty by interpreted as having the meaning that it allows a Member State to adopt legislation under which [...]?».
Is the national court legally obligated to use the preliminary reference mechanism and when?
The decision whether to submit a request for a preliminary ruling to the CJEU rests with the national court concerned. However, if it is a court of last instance, regardless of whether it’s a supreme court or a court of first instance, and a question of interpretation of EU law or the validity of an act of the EU institutions is necessary to decide a question before it, that court is obliged to submit a question according to Article 267 TFEU. If it refrains from doing so, the Member State concerned may be held liable for a breach of EU law9.
Although in case of doubt it is preferable for the national court to refer questions, to avoid any potential damage caused to individuals, nevertheless, and by way of exception, even the supreme court may decide to abstain from using the preliminary reference mechanism where:
- the question to be referred to the Court is identical to a question on which the Court has already ruled previously10;
- the answer to that question may be clearly deduced from existing case-law11;
- the CJEU considers that the answer to that question leaves no room for reasonable doubt (acte claire)12.
In these cases, if the national court does eventually submit a request for a preliminary ruling, the latter may be dismissed by order of the CJEU.
What is the procedure followed in the preliminary reference mechanism?
It should be noted that the national court’s decision to suspend the national proceedings and submit preliminary questions to the CJEU is an interim judgment for the purposes of Greek civil procedure; it is therefore not subject to any type of challenge.
Thus, the Greek domestic court transmits the entire file of the case including the parties’ briefs and submitted evidence, the judge’s comments – if any –, along with the preliminary questions. The documents relevant to the preliminary reference are then translated into all official languages of the EU and they are transmitted to all EU institutions and the Member States, who may – if they so wish – submit their observations regarding the matter in question.
The preliminary ruling procedure involves written briefs and oral pleadings (answer to any questions posed by the CJEU). The following parties are entitled to submit their views and observations before the CJEU by means of a brief, and may have standing at the hearing: (a) the parties to the main (domestic) proceedings, through a representative instructed by them, (b) all EU institutions (although it is usually the European Commission that takes on this task), and (c) any Member State that so wishes. Potential participants mentioned under (a)-(c) are called «amici curiae» («friends of the Court»), since the preliminary reference mechanism does not classify as contentious proceedings, but rather as a stage of interpretation of EU law undertaken by the CJEU, which is assisted and supported in its task by third parties.
After the written and oral procedure, but before the CJEU delivers its ruling on the interpretation or validity of a rule of EU law, the General Attorney to whom the particular case has been assigned submits a non-binding Opinion.
It should be noted that under the Treaty of Lisbon it is possible to follow the so-called «urgent procedure», following a reasoned request from the referring court or even by an ex officio order of the CJEU. This procedure allows the CJEU to deal more promptly with questions revolving around sensitive matters pertaining to the Area of Freedom, Security and Justice, such as in cases where a person is held in custody, or in cases regarding the parental responsibility for children. In the framework of the urgent preliminary ruling procedure it is possible to omit the written part of procedure in cases of extreme urgency.
Is the answer of the CJEU binding on the national court that asked the question?
A judgment of the CJEU in a preliminary reference procedure is, strictly speaking, binding only on the national court that submitted the question, as well as on other courts in the same domestic procedure. Nonetheless, CJEU judgments interpreting EU law enjoy an authority similar to those of national supreme courts in civil law countries – national courts interpreting EU law should take them into account, otherwise the unsuccessful party may file an action for damages on the grounds of non-contractual liability of the relevant Member State13.
Furthermore, if the CJEU decides that an act of the EU institutions is illegal, no national court may find to the contrary and consider that act legal.
CJEU rulings on the interpretation of a rule of EU law or the validity of an EU act have retroactive effect to the date of adoption of the relevant rule or act. However, the CJEU may limit the retroactive effect of its ruling in part or in whole, on the grounds of legal certainty or in order to mitigate excessive consequences of a possible retroactive effect.
Apart from the above, once the preliminary reference proceedings have concluded, it is incumbent exclusively upon the national court to apply the legal rule, as that latter was interpreted by the CJEU, to the facts of the case. In other words, the Court does not substitute a national court; it does not interpret rules of domestic law nor does it rule on their validity; it does not assess the facts of the case and whether sumbitted allegations are well-founded in law or in fact; and it most certainly does not dictate the content of the national court’s ruling in the case brought before it.
Do Greek courts comply with the requirements of the preliminary reference mechanism?
Greek courts have established a fruitful debate with the CJEU already since the early days of Greece as a EEC Member. In legal proceedings of eminent importance, involving the application of EU law rules, the Greek courts have made use of recourse to the preliminary reference mechanism to ensure respect for the rights of individuals under EU law14. However, it is usually the national supreme courts, as opposed to appellate courts, following this route, whereas first instance Greek courts abstain from exploiting this option that is available to them.
1. See CJEU Opinion 1/09, opinion of 08.03.2011, Agreement creating a Unified Patent Litigation System, ECLI:EU:C:2011:123, paras 80 et seq., and CJEU Opinion 2/13, opinion of 18.12.2014, Accession of the European Union to the ECHR, ECLI:EU:C:2014:2454, para. 176.
2. See, inter alia, CJEU C-54/96, judgment of 17.09.1997, Dorsch Consult, ECLI:EU:C:1997:413, para. 23.
3. ECJ 14/86, judgment of 11.06.1987, Pretore di Salò / X, ECLI:EU:C:1987:275.
4. ECJ 138/80, order of 18.06.1980, Borker, ECLI:EU:C:1980:162.
5. CJEU C-53/03, judgment of 31.05.2005, Syfait and others, ECLI:EU:C:2005:333.
6. CJEU C-363/11, judgment of 19.12.2012, Epitropos tou Elegktikou Synedriou, ECLI:EU:C:2012:825.
7. ECJ C-286/88, judgment of 26.01.1990, Falciola / Comune di Pavia, ECLI:EU:C:1990:33.
8. ECJ C-104/79, judgment of 11.03.1980, Foglia / Novello, ECLI:EU:C:1980:73.
9. CJEU C-416/17, judgment of 04.10.2018, Commission / France, ECLI:EU:C:2018:811.
10. ECJ C-551/07, order of 19.12.2008, Sahin, ECLI:EU:C:2008:755.
11. CJEU C-307/99, order of 02.05.2011, OGT Fruchthandelsgesellschaft, ECLI:EU:C:2001:228.
12. CJEU C-386/09, order of 15.09.2010, Briot, ECLI:EU:C:2010:526.
13. ECJ C-224/01, judgment of 30.09.2003, Köbler, ECLI:EU:C:2003:513.
14. See, inter alia, Supreme Court (Areios Pagos) judgment no 19/1999, Council of State (Symvoulio Epikrateias) judgment no 2670/2006, Council of State (Symvoulio Epikrateias) judgment no 1254/2015, Council of State (Symvoulio Epikrateias) judgment no 1305/2017.
