Preliminary Reference

The Court of Justice has jurisdiction to give preliminary rulings on points of European Union law.  This covers matters of interpretation of the Treaties, EU legislation and measures by its institutions.

Where a question is raised before any court or tribunal in a member state, it may refer the question of European Union law to the Court of Justice to give a ruling where this is necessary to enable it to give judgment in the matter.  Where a question is raised in a case before a court or tribunal where there is no appeal (e.g. Supreme Court) the matter shall be referred to the European Court of Justice, where this is necessary.

The national court will usually adjourn proceedings to refer the matter.  The Court of Justice rules on the point of European law.  It does not determine the ultimate case.  When it makes its ruling, the matter is remitted to the national court in order to determine the case on the basis of the Court of Justice’s interpretation of European Union law and to apply it in the case before the court.

The parties to the original proceedings are not directly involved in the reference.  They may make written or verbal submissions.  Other interested entities such as the institutions of the European Union member states may make deposition known if they wish to.

Subject Matter of Reference

Preliminary rulings seek to establish uniformity in the interpretation of European Union laws.  If each state’s courts were to apply European Union law in accordance with its own principles and traditions, significant divergence might arise.

References may be made in respect of both the interpretation and validity of European Union law.  The secondary legislation of the European Union may be found to be invalid with reference to the treaty or the EU’s powers.  The preliminary reference procedure may be used in respect of international agreements entered by the European Union, which create rights for citizens in states.

The procedure does not apply to questions of the validity of the treaty itself.  Judgments of the Court of Justice cannot be questioned.  Certain matters of interpretation of measures relating to the maintenance of law and order and internal security may not be questioned.

Qualifying Bodies

A reference may be made by any court or tribunal in a state.  It must be a court or tribunal established by law.  Parties may not provide by private agreement.  The matter may be referred to the European Court of Justice.  Accordingly, issues arising in arbitration proceedings may not be referred.

In order to qualify, the body must be established by national law.  It must be permanent, independent and judicial in nature.  Its jurisdiction must be compulsory in the matters concerned.  The procedure must be adversarial.  It must give a decision of a judicial nature.

Many quasi-judicial bodies under Irish law may be entitled to make reference. A body which performs administrative functions only and does not make judicial-type decisions does not qualify.

Although private arbitration is not qualified for reference, certain public arbitration procedures may be the subject of a preliminary reference.  This may apply in the context of employment relations and collective agreements where the decision is quasi-judicial in nature so that a reference may be allowed.

Role of European Court

The Court of Justice determines the interpretation, scope and meaning of the provisions under EU law.  It may consider whether national legislation gives proper effect to the EU law.  They may determine the scope and effect of laws and whether they are directly effective.  They may not interpret matters of national law.

References are accepted in relation to questions of national law which refer directly and unconditionally to EU law.  In the circumstances, the provision of EU law must be absolutely and unconditionally binding on the national courts.

The Court of Justice assists the National Court.  It rules on the matter of EU law in the abstract.  However, of necessity, it will make its decision in the context of the particular circumstances and facts of the case.

It is a matter for the European courts on reference to interpret European Union law.  It is a matter for the national courts to apply it. However, it may be necessary for the European courts to make some element of substantive decision in order to give meaningful guidance to the national court.  If its advice is too abstract, it may be of little use in its application to the circumstances.

The Court of Justice’s decision on principle may be overturned in a future reference or case. A strict principle of precedent does not apply. If a matter has already been decided, a brief decision may be made referring to previous decisions.

Role of National Court

In courts other than those from which there is no appeal, there is a discretion as to whether or not to refer a matter of European Union law to the European Court. Neither the European courts themselves, institutions and/or parties can force a reference.  Equally, a judge may make a reference even if the parties do not request it.  It is for the judge to decide at what point in the case, a reference should be made, if at all.

There must be a genuine dispute between the parties in the national proceedings.  If parties are not genuinely in dispute, they may not collude simply to have the European courts determine an issue.  A hypothetical point will not be considered. The question of European Union law must be relevant to the dispute.

The reference itself should set out the facts and the legal context.  It should set out the reasons for the reference.  In some cases, the facts will be more important than in others.

Where the point of EU law is well-established, a reference is not required. It is not necessary for the final court to make a reference where the Court of Justice has already rendered an interpretation on the same question before.  Where the question raised is materially identical to a question already raised, a preliminary ruling is not necessary.

The position of Highest National Court

Courts in which there is no further appeal are obliged to refer matters of European Union law for a preliminary ruling.    The requirement applies to courts from which there is no judicial remedy under national law.  This in effect refers to the highest court such as the Supreme Court in Ireland or the Court of Appeal or the Supreme Court in some cases, in the United Kingdom.  The English Court of Appeal takes the view that it is not a final court notwithstanding that leave or consent is required to apply to the House of Lords/Supreme Court.

The highest courts have some element of discretion to consider whether a referral is necessary.  They need not make a reference where EU is not relevant to the dispute.  Where the point of law is clear and has already been dealt with or is otherwise clear, a reference is not required.

Where there is no doubt as to the correct application of European Union law, a reference need not be made.  However, the matter must be clearly obvious and not just a matter of interpretation by the national court.  It must be so obvious that there is no scope for a reasonable doubt.

The courts must consider whether the matter is equally obvious to courts of other states in light of the differing circumstances, languages etc.  The court should take account of the fact that the EU may use terminology and legal concepts at variance with those found in states.  It must be conscious that EU laws must be interpreted in the context of the entirety of the European Union institutions.

Interim Suspension

Preliminary rulings may raise questions of the validity of European regulations and directives and other legislative measures under the treaty.  Where the Court of Justice on a preliminary ruling finds an act to be invalid, then this must be recognised by other courts.

In theory, all decisions have retrospective effect.  Moreover, the courts recognise limitations such as where there are existing adjudications or where matters of administrative convenience would deny effect to a retroactive decision.

In certain cases, national courts may suspend the application of national measures pending the decision of the Court of Justice.  This is only possible in the following conditions.

  • a preliminary ruling has been validly sought
  • there must be serious doubt as to the validity
  • the matter must be urgent;
  • there must be a risk of serious irreparable harm, and
  • damages must not be # remedy.

The interests of the EU must have been taken into account. In such cases, the national courts may grant interim relief from the effect of the legislation concerned.

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