CONTENTS. J>repace Table of Cases Table of Legislation. v x1x lix. 1. References for Preliminary Rulings 1

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1 CONTENTS J>repace Table of Cases Table of Legislation v x1x lix 1. References for Preliminary Rulings 1 1. Introduction Preliminary rulings in the Community judicial system The structure of this book 3 2. History and Development of the Preliminary Reference Procedure 4 3. Outline of the Different Possibilities of Making References to the Court of]ustice Overview Article 68 of the EC Treaty Article 35 of the EUTreaty The Euratom Treaty Conventions Preliminary references and the Common Foreign and Security Policy TheTreatyofLisbon References to the EFTA Court Other Ways of Obtaining Legal Guidance from Community Bodies Asking the European Commission for guidance on the interpretation of Community law Questions on competition and State aid law Questions that do not concern competition or State aid law Asking the European Ombudsman for guidance on the interpretation of Community law The Preliminary Reference System in the Future Overview Transfer of preliminary cases to the Court of First Instance Green light procedures Docket control 31 Vll

2 6.5. Limiting the right to refer to courts oflast instance 6.6. Decentralised Community courts The best way forward? Variations in Member State Use of Preliminary References The Distribution of Preliminary References among the Member States Overview The number of references from the different Member States Distribution of references between higher and lower courts Why do Courts in Some Member States Refer more than Others? Overview Differences in population figures The amount of cross-border activity Level of compliance with Community law Differences in litigation patterns Constitutional traditions Inter-court competition-circumventing the practice of higher courts The national court's policy preferences Specialised judiciary vs non-specialised judiciary Special factors in the national judicial system The link between the use of Article 234 and the attitude to Community law by national courts Conclusion-why do some Member States make more preliminary references than others? 3. Which Bodies May Refer? 1. Who May Refer Preliminary Questions? 2. Criteria for Determining whether there is a 'Court or Tribunal' Entitled to Make a Reference 2.1. Is the body established by law? 2.2. Does the body have a permanent character? 2.3. Is the body independent? 2.4. Is the jurisdiction of the body compulsory? 2.5. Does the body use an adversary procedure? 2.6. Does the body take its decisions on the basis oflegal rules? Must the members of the referring body include lawyers? 2.8. Does the question arise in connection with the settlement of a dispute? Are there other judicial solutions to the conflict in question? The Court's weighting of the different criteria Vlll

3 3. Which Bodies Qualify as a 'Court or Tribunal'? 3.1. Judicial bodies Ordinary national courts International courts and courts with jurisdiction in more Member States Activities which do not lead to decisions of a judicial nature The function as a judicial body is combined with other functions Summary proceedings Arbitration tribunals Courts that do not have jurisdiction to decide on the main action 3.2. Administrative authorities and ombudsmen General observations Administrative appeal boards Advisory bodies Ombudsmen 3.3. Private bodies Private disciplinary bodies Private professional bodies Management and Labour (social partners) 4. The Term 'of a Member State' 5. Other Forms of Preliminary References 5.1. Overview 5.2. Euratom Treaty 5.3. Justice and Home Affairs Article 68 of the EC Treaty Article 35 of the EUTreaty Criticism of the regimes applying to justice and home affairs 5.4. Conventions 6. References from a National Court that May not Make a Reference under National Law 6.1. The national court is prevented from setting aside a disputed national provision 6.2. A superior court has declared the contested national provision to be compatible with Community law ;What Questions Can Be Referred? t Introduction. Article 234(1)(a) on 'the interpretation of this Treaty'

4 2.1. Questions on validity of the EC Treaty What is covered by 'this Treaty'? Questions concerning the EUTreaty Overview Provisions amending the EC Treaty, the ECSC Treaty, or the Euratom Treaty References under Article 35 of the EUTreaty Enhanced cooperation Article 6(2) of the EUTreaty, on fundamental rights Article 7 of the EU Treaty, on sanctions in connection with a Member State's breach of human rights The final provisions of the EU Treaty The Schengen Agreement TheTreatyofLisbon Mixedjurisdiction Article 234(1)(b) on 'the validity and interpretation of acts of the institutions of the Community and of the ECB' The meaning of'the institutions of the Community' Themeaningof'acts' Acts adopted on the basis of the EC Treaty Community acts which refer to non-community act The act must have been adopted, but not necessarily have entered into force The act does not have direct effect The act has previously been the subject of a preliminary ruling The distinction between 'acts of the institutions of the Community' and agreements under international law outside the jurisdiction of the Court of Justice Overview Agreements between the Community and third countries Mixed agreements Overview-the four situations Provisions covered by exclusive competence Provisions covered by non-exclusive competence and where the Community has legislated Provisions covered by non-exclusive competence and where the Community has notlegislated Provisions not covered by the Community's competence 130 X

5 Acts of organs set up by an international agreement to which the Community is party International agreements to which the Community is not party, but which are an integral part of Community law International law that does not qualify as Community law, but that may affect the validity of Community law International agreements to which the Community is not a party Other international agreements which give the Court ofjustice jurisdiction to interpret The meaning of 'validity' Article 234(1)(c), 'the interpretation of the statutes of bodies established by an act of the Council' Questions which Fall Outside the Jurisdiction of the Court of}ustice Overview Nationallaw Interpretation of Community acts which do not apply in the main proceedings Overview Preliminary rulings on procedural questions in the main proceedings Application of Community law outside the scope of Community law Community law has been the model for national law Internal situations Circumstances arising before entry into the European Community The facts in the main proceedings Application of Community law in the main proceedings When Can a Reference for a Preliminary Ruling be Made? Overview General Considerations Who has jurisdiction to decide the relevance of a preliminary question? 2.2. The margin of discretion of the national courts 3. The Referring Court Must be Able to Apply the Court of}ustice's Ruling to the Main Proceedings

6 4. Questions not Related to the Facts and Circumstances of the Main Proceedings The Court's answer will only be relevant for future cases Questions concerning factual circumstances which differ from those in the main proceedings The question is based on unverified alternative views of the facts The question concerns legal questions which cannot be relevant to the main proceedings The referring court's interpretation of the facts or national law is being disputed The answer can already be given on the basis of national law The question has already been answered The relationship between issues of admissibility and issues of substance The question concerns a Community act which was not in force at the relevant time Relevance ratione temporis and national law The question concerns the legal status of the referring court Questions concerning legislation of other Member States Contrived Cases The Relationship between the Preliminary Procedure and the Infringement Procedure in Articles 226 and 227 of the EC Treaty The Relationship between the Preliminary Procedure and the Procedure in Article 230 concerning Actions for Annulment before the Court of]ustice The TWVdoctrine Discussion of the TWV doctrine When are National Courts Obliged to Refer Questions? The Right to Refer and the Obligation to Refer National Courts Covered by Article 234(3) Exceptions to the Obligation to Refer The question is not relevant More courts handling the case qualify as 'court oflast instance' Acte eclaire-a materially identical question has already been the subject of a preliminary ruling 233 Xll

7 .4. Acte clair-the correct application leaves no scope for any reasonable doubt Acteclairand the C!LF!Tjudgment National courts' margin of discretion under the acte clair doctrine Acte clair and the wishes of the parties Acte clair and the question of different language versions Acte clair and dissenting judgments Acte clair and rulings by other national courts Acte clair and cases pending before the Court of Justice Acte clair and administrative practice and legal literature Acte clair-meeting the demands of the times Other forms of preliminary references Euratom Treaty Justice and Home Affairs Article 68 of the EC Treaty Article 35 of the EUTreaty Conventions Cases on interim measures Application of Community law outside the scope of Community law 257 The Obligation of Courts Other than Those oflast Instance to Make a Reference Overview References concerning invalidity The duty to refer prior to a finding of invalidity References on validity where access to refer is restricted Findings of invalidity without (prior) preliminary reference Evaluating the Foto-Frost doctrine Deviating from the Court of Justice's interpretation of a Community legal act The duty ofloyal cooperation and preliminary references 265 Consequences of a National Court Disregarding its Obligation to Make a Reference Overview Infringement proceedings for failure to refer Failure to refer, validity of national judgments, and obligation to reopen the case-file Damages for failure to refer Failure to refer and Article 6 of the European Convention of Human Rights 271

8 7. When Ought a Reference for a Preliminary Ruling be Made? Overview Determining the Relevant Criteria The need for judicial assistance Delay and cost The wishes of the parties The wish not to overload the Court ofjustice Similar cases are pending From which Court should a Reference be Made? At what Stage in the Main Proceedings should a Reference be Made? The Form and Content of a Reference Introduction The Form of the Reference The Content of a Reference The need for a thorough order for reference Guidelines for the drafting of a reference for a preliminary ruling Introduction Identification of the question referred Information about the facts Information about national law The order for reference must be understandable without the need to refer to other documents Requesting the application of the urgent preliminary ruling procedure in the area of freedom, security, and justice Proceedings before the Referring Court after a Reference has been Made The Case Remains Pending before the National Court Appeal against a Decision to Make a Preliminary Reference Interim Relief Overview The competence of national courts to order interim relief Possible conflicts between national law and Community law Possible conflicts between different Community rules The conditions for granting interim relief Overview Doubt as to validity 335 XlV

9 Urgency Balancing the interests DIBLIOTECA CONJU H~IID The Procedure before the Court ofjustice Overview Notification of the Decision to Make a Reference Observations on the Preliminary Reference Those entitled to submit observations Observations by Community institutions and Member States Influencing the scope of the preliminary ruling through the presentation of observations The preliminary ruling procedure does not have any parties stricto sensu The subject matter of the preliminary question Supplementing or departing from the facts of the reference The main rule Supplementing the referring court's description of the facts The facts presented in the reference are being disputed The degree offact-finding performed by the referring court Undisputed facts that arise after the reference is made A party corrects information on the facts against his own interest Those entitled to present observations disagree on the correction of a fact Cases concerning the validity of Community rules Rules of evidence Departing from the referring court's interpretation of national law The Court of Justice's access to information on the facts and on national law The Procedure before the Court of]ustice Representation Language 4.3. The written proceedings Introduction Deadlines and requirements regarding submission of observations XV

10 Content and structure of written observations Length of the written observations The Report for the Hearing The oral procedure Not all cases are heard orally Setting the date for the oral hearing Time allowed for addressing the Court Content and conduct of the oral hearing Considerations pertaining to interpretation Closure of the oral procedure Expedited Procedures Overview The accelerated procedure laid down in Article 104a of the Court's Rules of Procedure Procedure The notion of'exceptional urgency' The urgent procedure in the area of freedom, security, and justice Overview of the urgent procedure Conditions for the application of the urgent preliminary ruling procedure The decision whether or not to apply the urgent procedure The written procedure The oral observations in the urgent procedure Gathering of Further Evidence and Reopening the Oral Proceedings The Preliminary Ruling Judgment or Order? Reformulating the Question Referred Overview The preliminary question is narrowed down Inclusion of other Community law provisions Alternative answers Potentially relevant issues that do not form part of the preliminary reference Questions on the validity of a Community provision Tailoring the Preliminary Ruling to the Facts of the Case The extent to which the Court of Justice itself makes the legal classification of the facts The nature of the question 421 XVl

11 3.3. The content and formulation of the preliminary reference Policy considerations The work load of the Court of Justice New legal principles The Effects of the Preliminary Ruling Introduction The Effects of a Preliminary Ruling for the Main Proceedings National courts dealing with the case The parties to the main proceedings The Effect of a Preliminary Ruling in Other Cases Other national courts Parties in other national proceedings, Community institutions, and Member States The Court of)ustice The Legal Significance of the Opinions of the Advocates General The Temporal Effect of a Preliminary Ruling The main rule Circumstances which justify limiting the temporal effect Overview Lack oflegal clarity and good faith General considerations The behaviour of Community institutions Legitimate expectations for Member States? Serious financial consequences Relationship to pending proceedings Temporal limitation in cases concerning the validity of Community measures Interpretation and Revision of a Preliminary Ruling Litigation Costs and Legal Aid Litigation Costs Legal Aid 461 Bibliography 463 Index 475