ABSTRACT

Explain the main purposes of the preliminary reference procedure Discuss how the procedure has been used to develop EU law Understand what is meant by ‘a court or tribunal’ in this context Distinguish between when a court has a discretion to make a preliminary reference and when it has an obligation to refer Identify when a preliminary reference would not be necessary Consider whether the Court of Justice (CJ - formerly ECJ) can refuse to hear a reference Explain the effect of a preliminary ruling Outline proposals for reform of the preliminary reference procedure

PRELIMINARY REFERENCES Article 267 TFEU (formerly Article 234 TEC) gives the Court of Justice (CJ – formerly ECJ) jurisdiction to give preliminary references on questions of interpretation and validity of EU law at the request of the national courts of a Member State. The procedure is a court to court procedure in which the national court is to hear the case, and when it encounters problems relating to interpretation of the Treaties or the interpretation or validity of acts of the institutions of the Union (e.g. regulations, directives, decisions, opinions and recommendations), the case is referred to the Court of Justice. It should be stressed that the validity of the Treaties cannot be questioned. After a ruling, the Court of Justice returns the case to the national court for it to be applied to the facts of the case. So, the case starts and ends in the national courts. Article 267(2) TFEU (formerly Art 234(2) TEC) provides that ‘any court or tribunal’ has a discretion to request a preliminary reference, but a court against whose decision there is no judicial remedy is obliged to make a preliminary reference under Art 267(3) TFEU (formerly Art 234(3) TEC).