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 or tribunal of a European Union member state. Preliminary rulings are final determinations of Union law in question by the EU courts. The final decision remains with the referring court to be decided after it received the preliminary ruling. European Union Preliminary rulings can only be made by the European Court of Justice. The Treaty of Lisbon provided that jurisdiction may be conferred on the General Court but this has not been put into effect.
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.
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."
Courts that may ask questions
What constitutes a "court or tribunal" is a matter of Union law and it is not to be determined by reference to national law. 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—
- it is established by law,
- it is permanent,
- its jurisdiction is compulsory,
- it has an inter partes procedure,
- it applies rules of law, and
- it is independent.
However, these criteria are not absolute. In Broekmeulen v Huisarts Registratie Commissie 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. Also the Benelux Court of Justice was considered a court within this context, as a court common to several (Netherlands, Belgium, Luxembourg) Member States. Also the Unified Patent Court, as a court common to several Member States is expected to be able to ask prejudicial questions.
Right and Duty to refer for a preliminary ruling
Article 267 of the Treaty on the Functioning of the European Union (TFEU) establishing the preliminary reference procedure differentiates between the right and the duty of national courts to seek a preliminary ruling. Under the discretionary reference stipulated in Article 267(2) TFEU, a national "court or tribunal" may ask the CJEU to give a preliminary ruling if it considers that a decision on the question is "necessary" to enable it to give a judgment in a particular case. The obligatory reference (duty to refer) is established in two cases: with respect to national courts adjudicating at last instance (Article 267(3) TFEU ) and with respect of all courts faced with a question of the validity of EU law. The obligation of national courts of last instance to refer for a preliminary ruling when a question of the interpretation of EU law arises is subject to certain exceptions. In accordance with the jurisprudence of the Court, a national court is relieved from the duty to refer (i) when EU law questions are not relevant to the decision in the main proceedings, (ii) in a situation before a national court is “materially identical with a question which has already been subject of a preliminary ruling in a similar case” (‘acte éclairé’), or (iii) when the proper interpretation of EU law is “so obvious as to leave no scope for any reasonable doubt” (‘acte clair’).
Ruling on non-EU cases
The European Court of Justice is competent to give rulings regarding the interpretation of treaties to which the European Union is a party, as those treaties are considered to be part of EU law. ECJ is however also competent regarding the application of certain treaties between EU member states, although the procedure may be subject to different procedures. Two such treaties are the 1968 Brussels Convention on jurisdiction in civil and commercial matters and the 1980 Rome convention on applicable law (now mostly replaced by the Brussels I and Rome I regulations respectively).
The possibility to ask for a preliminary ruling is also embedded in other legal systems.
- The courts of Belgium, the Netherlands and Luxembourg may ask "questions regarding the interpretation of the law" to the Benelux Court of Justice regarding certain Benelux conventions and regulations.
- Iceland, Liechtenstein and Norway may request the EFTA Court of Justice for an "advisory opinion" regarding the interpretation of the European Economic Area Agreement, as well as EU regulations that apply to those states.
- Craig, Paul; de Búrca, Gráinne (2011). EU law: text, cases, and materials (5th ed.). Oxford: Oxford University Press. p. 482. ISBN 9780199576999.
- Case 244/80, Pasquale Foglia v. Mariella Novello paragraph 18.
- Case C-24/92, Corbiau v Administration des Contributions at paragraph 15.
- Case C-54/96 Dorsch Consult Ingenieurgesellschaft v Bundesbaugesellschaft Berlin at paragraph 23.
- Case 246/80, C. Broekmeulen v Huisarts Registratie Commissie
- Limante, Agne. Recent Developments in the Acte Clair Case Law of the EU Court of Justice: Towards a more Flexible Approach. JCMS: Journal of Common Market Studies, 2016, DOI: 10.1111/jcms.12434