The preliminary reference procedure is used when a national court or tribunal refers a question of EU law to the European Court

of Justice (ECJ) for a preliminary ruling so as to enable the national court, on receiving that ruling, to decide the case before it. Questions of EU law will arise in cases before the courts of different Member States. The function of the preliminary reference procedure is to ensure uniform interpretation and validity of EU law across all the Member States. The procedure is laid down in Article 267 TFEU: Where such a question is raised before any court or tribunal of a Member State, that court may, if it considers that a decision on the question is necessary to enable it to give judgment, require the Court of Justice to give a ruling thereon. While lower courts have discretion as to whether to make references to the ECJ, Article 267 TFEU excludes such discretion in the case of final courts of appeal. The ECJ characterises the preliminary reference procedure as based on cooperation between national courts and the ECJ. However, it is the ECJ that controls this cooperation and sets its terms. In its dialogue with national courts, it has the upper hand and has succeeded in co-opting national courts into an EU judicial system. In practice, labour courts in the Member States have differed greatly in the use made of the preliminary reference procedure. Despite the uniform requirements of Article 267 TFEU, the number of references made by national labour courts in different Member States varies considerably. The ECJ has been sensitive to the charge of usurping the role of national courts in deciding cases. However, the technique adopted by the Court is problematic. The ECJ aims to lay down EU law principles, but leaves the application of these principles to national courts. The boundaries are often unclear. A principle may be defined in terms that leave little or no discretion to national courts; or the principle may be defined so vaguely as to provide the national court with little in the way of useful guidance. Cases involving EU law on employment and industrial relations provide illustrations. For example, the European Court has laid down the principle that indirect discrimination is justifiable on objective grounds, which must, however, comply with the general principle of proportionality but both objective grounds and proportionality are to be left for national courts to decide (Bilka-Kaufhaus GmbH v. Karin Weber von Hartz, Case 170/84, [1986] ECR 1607).

Despite these difficulties, the preliminary reference procedure has become the most frequently used channel of access to the ECJ.

The reference for a preliminary ruling The reference for a preliminary ruling is a procedure exercised before the Court of Justice of the European Union. This procedure enables national courts to question the Court of Justice on the interpretation or validity of European law. The reference for preliminary ruling forms part of the procedures which may be exercised before the Court of Justice of the European Union (CJEU). This procedure is open to all Member States national judges. They may refer a case already underway to the Court in order to question it on the interpretation or validity of European law. In contrast to other judicial procedures, the reference of a preliminary ruling is therefore not a recourse taken against a European or national act, but a question presented on the application of European law. The reference for a preliminary ruling thus promotes active cooperation between the national courts and the Court of Justice and the uniform application of European law throughout the EU. Nature of references for a preliminary ruling Any national court to which a dispute in which the application of a rule of European law raises questions (original case) has been submitted can decide to refer to the Court of Justice to resolve these questions. Therefore, there are two types of reference for a preliminary ruling:

a reference for a ruling on the interpretation of the European instrument: the national judge requests the Court of Justice to clarify a point of interpretation of European law in order to be able to apply it correctly;

a reference for a preliminary ruling on the validity of the European instrument: the national judge requests the Court of Justice to check the validity of an act of European law.

The reference for a preliminary ruling is therefore a reference "from one judge to another". Although a referral to the Court of Justice may be requested by one of the parties involved in the dispute, the decision to do so rests with the national court. In this respect, Article 267 of the Treaty on the Functioning of the EU specifies that national courts which act as a final resort, against whose decisions there is no judicial remedy, are obliged to exercise the reference for a preliminary ruling if one of the parties requests it. In contrast, national courts which are not a final resort are not obliged to exercise the reference for a preliminary ruling even if one of the parties requests it. In any case, all national courts must immediately refer a matter to the Court of Justice in cases of doubt regarding a European provision. The Court of Justice therefore only gives a decision on the constituent elements of the reference for a preliminary ruling made to it. The national court therefore remains competent for the original case. On principle, the Court of Justice must answer the question put to it. It cannot refuse to answer on the grounds that this response would be neither relevant nor timely as regards the original case. It can, however, refuse if the question does not fall within its sphere of competence. Scope of preliminary rulings The Court of Justice Decision has the force of res judicata. It is, furthermore, binding not only on the national court on whose initiative the reference for a preliminary ruling

was made but also on all of the national courts of the Member States. In the context of a reference for a preliminary ruling concerning validity, if the European instrument is declared invalid all of the instruments adopted based on it are also invalid. It then falls to the competent European institutions to adopt a new instrument to rectify the situation.

Jump to: navigation, search A preliminary ruling is a decision of the European Court of Justice (ECJ) on the interpretation of European Union law, made at the request of a court of a European Union member state. The name is somewhat of a misnomer in that preliminary rulings are not subject to a final determination of the matters in question, but are in fact final determinations of the law in question. Preliminary rulings can also be made, in certain circumstances, by the European General Court, although most are made by the ECJ. A request (or reference) for a preliminary ruling is made by submitting questions to the ECJ for resolution. However, questions are not answered in abstraction, but rather are submitted together with the circumstances leading up to their being asked. Thus, whilst the ECJ is limited to deciding the law in question, the ECJ's ruling frequently leaves little room to rule other than in a certain way. The ECJ may also decline to give judgement in the absence of a genuine dispute.[1] Article 267 of the Treaty on the Functioning of the European Union states the following: "The Court of Justice of the European Union shall have jurisdiction to give preliminary 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 necessary 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." What constitutes a "court or tribunal" is a matter of Union law and it is not to be determined by reference to national law.[2] In determining whether or not a body is a "court or tribunal of Member State" the

European Courts will take a number of issues into account, namely whether 1. 2. 3. 4. 5. it is established by law, it is permanent, its jurisdiction is permanent, it has an adversarial procedure, it applies rules of law, and 6. it is independent.[3] However, these criteria are not absolute. In Broekmeulen v Huisarts Registratie Commissie[4] the ECJ ruled that a body established under the auspices of the Royal Medical Society for the Promotion of Medicine was a "court or tribunal" within the meaning of the treaty, even though that society was a private association.