Preliminary reference procedure

06-07-2017

The preliminary reference procedure, provided for in Article 267 of the Treaty on the Functioning of the European Union (TFEU), is an institutionalised mechanism of dialogue between the Court of Justice of the European Union (CJEU) and national courts. This dialogue serves three principal purposes. First of all, to provide national courts with assistance on questions regarding the interpretation of EU law. Secondly, to contribute to a uniform application of EU law across the Union. Thirdly, to create an additional mechanism – on top of the action for annulment of an EU act (set out in Article 263 TFEU) – for an ex post verification of the conformity of acts of the EU institutions with primary EU law (the Treaties and general principles of EU law). The scope of the preliminary reference procedure covers the entire body of EU law with the exclusion of acts under common foreign and security policy and certain limitations in the area of judicial and police cooperation in criminal matters. EU law does not have a doctrine of binding precedent such as that entertained in common law countries. Therefore, 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. 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. The decision whether to submit a preliminary reference to the CJEU rests with the national court concerned. However, if it is a court of last 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 must submit a question. If it refrains from doing so, the Member State concerned may be held liable for a breach of EU law. This briefing is one in a series aimed at explaining the activities of the CJEU.

The preliminary reference procedure, provided for in Article 267 of the Treaty on the Functioning of the European Union (TFEU), is an institutionalised mechanism of dialogue between the Court of Justice of the European Union (CJEU) and national courts. This dialogue serves three principal purposes. First of all, to provide national courts with assistance on questions regarding the interpretation of EU law. Secondly, to contribute to a uniform application of EU law across the Union. Thirdly, to create an additional mechanism – on top of the action for annulment of an EU act (set out in Article 263 TFEU) – for an ex post verification of the conformity of acts of the EU institutions with primary EU law (the Treaties and general principles of EU law). The scope of the preliminary reference procedure covers the entire body of EU law with the exclusion of acts under common foreign and security policy and certain limitations in the area of judicial and police cooperation in criminal matters. EU law does not have a doctrine of binding precedent such as that entertained in common law countries. Therefore, 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. 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. The decision whether to submit a preliminary reference to the CJEU rests with the national court concerned. However, if it is a court of last 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 must submit a question. If it refrains from doing so, the Member State concerned may be held liable for a breach of EU law. This briefing is one in a series aimed at explaining the activities of the CJEU.