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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 ...

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.

National Ombudsmen in the EU

23-09-2010

All but one EU Member State has a national Ombudsman as part of the checks and balances of their constitution. Whilst their mandates, powers and jurisdictions vary, along with their titles, each can play an important role as an independent defender of citizens’ rights. Although the Ombudsman originated in Sweden in the nineteenth century, it is in the second half of the twentieth that the institution was adopted internationally. The growth of public administrations after 1945 is seen as the initial ...

All but one EU Member State has a national Ombudsman as part of the checks and balances of their constitution. Whilst their mandates, powers and jurisdictions vary, along with their titles, each can play an important role as an independent defender of citizens’ rights. Although the Ombudsman originated in Sweden in the nineteenth century, it is in the second half of the twentieth that the institution was adopted internationally. The growth of public administrations after 1945 is seen as the initial catalyst, with the adoption of human rights conventions in new democracies precipitating a second wave of new Ombudsmen more recently. Recent studies suggest three models of Ombudsman exist. Those without coercive powers must rely on both the public nature of their recommendations and their own moral authority. However, those with stronger powers particularly with regards to the judiciary, face criticism for jeopardising its independence. In newer institutions, human rights have become a central concern. In Europe, both the Council of Europe and, in more recent times, the EU have taken measures to support and promote Ombudsman institutions and allow exchanges of good practice.  

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