CONTENTS J>repace Table of Cases Table of Legislation v x1x lix 1. References for Preliminary Rulings 1 1. Introduction 1 1.1. Preliminary rulings in the Community judicial system 1 1.2. 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 8 3.1. Overview 8 3.2. Article 68 of the EC Treaty 9 3.3. Article 35 of the EUTreaty 10 3.4. The Euratom Treaty 11 3.5. Conventions 11 3.6. Preliminary references and the Common Foreign and Security Policy 13 3.7. TheTreatyofLisbon 13 4. References to the EFTA Court 16 5. Other Ways of Obtaining Legal Guidance from Community Bodies 17 5.1. Asking the European Commission for guidance on the interpretation of Community law 17 5.1.1. Questions on competition and State aid law 17 5.1.2. Questions that do not concern competition or State aid law 19 5.2. Asking the European Ombudsman for guidance on the interpretation of Community law 22 6. The Preliminary Reference System in the Future 25 6.1. Overview 25 6.2. Transfer of preliminary cases to the Court of First Instance 26 6.3. Green light procedures 30 6.4. Docket control 31 Vll
6.5. Limiting the right to refer to courts oflast instance 6.6. Decentralised Community courts 6. 7. The best way forward? 33 34 35 2. Variations in Member State Use of Preliminary References 37 1. The Distribution of Preliminary References among the Member States 37 1.1. Overview 37 1.2. The number of references from the different Member States 38 1.3. Distribution of references between higher and lower courts 38 2. Why do Courts in Some Member States Refer more than Others? 41 2.1. Overview 41 2.2. Differences in population figures 42 2.3. The amount of cross-border activity 43 2.4. Level of compliance with Community law 44 2.5. Differences in litigation patterns 47 2.6. Constitutional traditions 49 2.7. Inter-court competition-circumventing the practice of higher courts 52 2.8. The national court's policy preferences 54 2.9. Specialised judiciary vs non-specialised judiciary 55 2.1 0. Special factors in the national judicial system 56 2.11. The link between the use of Article 234 and the attitude to Community law by national courts 56 2.12. 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? 2. 7. Must the members of the referring body include lawyers? 2.8. Does the question arise in connection with the settlement of a dispute? 68 2.9. Are there other judicial solutions to the conflict in question? 69 2.10. The Court's weighting of the different criteria 70 58 59 59 60 61 62 62 65 65 66 68 Vlll
3. Which Bodies Qualify as a 'Court or Tribunal'? 3.1. Judicial bodies 3.1.1. Ordinary national courts 3.1.2. International courts and courts with jurisdiction in more Member States 3.1.3. Activities which do not lead to decisions of a judicial nature 3.1.4. The function as a judicial body is combined with other functions 3.1.5. Summary proceedings 3.1.6. Arbitration tribunals 3.1.7. Courts that do not have jurisdiction to decide on the main action 3.2. Administrative authorities and ombudsmen 3.2.1. General observations 3.2.2. Administrative appeal boards 3.2.3. Advisory bodies 3.2.4. Ombudsmen 3.3. Private bodies 3.3.1. Private disciplinary bodies 3.3.2. Private professional bodies 3.3.3. 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 5.3.1. Article 68 of the EC Treaty 5.3.2. Article 35 of the EUTreaty 5.3.3. 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 71 72 72 72 73 78 79 79 82 84 84 87 88 90 91 91 92 93 93 97 97 97 97 97 98 99 100 101 102 104 ;What Questions Can Be Referred? t Introduction. Article 234(1)(a) on 'the interpretation of this Treaty' 105 105 106
2.1. Questions on validity of the EC Treaty 106 2.2. What is covered by 'this Treaty'? 107 2.3. Questions concerning the EUTreaty 108 2.3.1. Overview 108 2.3.2. Provisions amending the EC Treaty, the ECSC Treaty, or the Euratom Treaty 109 2.3.3. References under Article 35 of the EUTreaty 109 2.3.4. Enhanced cooperation 113 2.3.5. Article 6(2) of the EUTreaty, on fundamental rights 113 2.3.6. Article 7 of the EU Treaty, on sanctions in connection with a Member State's breach of human rights 114 2.3. 7. The final provisions of the EU Treaty 114 2.3.8. The Schengen Agreement 115 2.3.9. TheTreatyofLisbon 116 2.4. Mixedjurisdiction 116 3. Article 234(1)(b) on 'the validity and interpretation of acts of the institutions of the Community and of the ECB' 117 3.1. The meaning of'the institutions of the Community' 117 3.2. Themeaningof'acts' 118 3.2.1. Acts adopted on the basis of the EC Treaty 118 3.2.2. Community acts which refer to non-community act 119 3.2.3. The act must have been adopted, but not necessarily have entered into force 121 3.2.4. The act does not have direct effect 122 3.2.5. The act has previously been the subject of a preliminary ruling 122 3.3. The distinction between 'acts of the institutions of the Community' and agreements under international law outside the jurisdiction of the Court of Justice 123 3.3.1. Overview 123 3.3.2. Agreements between the Community and third countries 124 3.3.3. Mixed agreements 125 3.3.3.1. Overview-the four situations 125 3.3.3.2. Provisions covered by exclusive competence 126 3.3.3.3. Provisions covered by non-exclusive competence and where the Community has legislated 126 3.3.3.4. Provisions covered by non-exclusive competence and where the Community has notlegislated 128 3.3.3.5. Provisions not covered by the Community's competence 130 X
3.3.4. Acts of organs set up by an international agreement to which the Community is party 131 3.3.5. International agreements to which the Community is not party, but which are an integral part of Community law 132 3.3.6. International law that does not qualify as Community law, but that may affect the validity of Community law 133 3.3.7. International agreements to which the Community is not a party 134 3.3.8. Other international agreements which give the Court ofjustice jurisdiction to interpret 137 3. 4. The meaning of 'validity' 13 7 4. Article 234(1)(c), 'the interpretation of the statutes of bodies established by an act of the Council' 139 5. Questions which Fall Outside the Jurisdiction of the Court of}ustice 140 5.1. Overview 140 5.2. Nationallaw 140 5.3. Interpretation of Community acts which do not apply in the main proceedings 142 5.3.1. Overview 142 5.3.2. Preliminary rulings on procedural questions in the main proceedings 142 5.3.3. Application of Community law outside the scope of Community law 143 5.3.4. Community law has been the model for national law 145 5.3.5. Internal situations 152 5.4. Circumstances arising before entry into the European Community 153 5.5. The facts in the main proceedings 155 5.6. Application of Community law in the main proceedings 156 5. When Can a Reference for a Preliminary Ruling be Made? 158 1. Overview 159 2. General Considerations 160 2.1. 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 160 161 164
4. Questions not Related to the Facts and Circumstances of the Main Proceedings 172 4.1. The Court's answer will only be relevant for future cases 172 4.2. Questions concerning factual circumstances which differ from those in the main proceedings 176 4.3. The question is based on unverified alternative views of the facts 180 4.4. The question concerns legal questions which cannot be relevant to the main proceedings 181 4.5. The referring court's interpretation of the facts or national law is being disputed 183 4.6. The answer can already be given on the basis of national law 186 4.7. The question has already been answered 190 4.8. The relationship between issues of admissibility and issues of substance 191 4. 9. The question concerns a Community act which was not in force at the relevant time 194 4.1 0. Relevance ratione temporis and national law 197 4.11. The question concerns the legal status of the referring court 199 4.12. Questions concerning legislation of other Member States 200 5. Contrived Cases 203 6. The Relationship between the Preliminary Procedure and the Infringement Procedure in Articles 226 and 227 of the EC Treaty 211 7. The Relationship between the Preliminary Procedure and the Procedure in Article 230 concerning Actions for Annulment before the Court of]ustice 213 7.1. The TWVdoctrine 213 7.2. Discussion of the TWV doctrine 219 6. When are National Courts Obliged to Refer Questions? 223 1. The Right to Refer and the Obligation to Refer 223 2. National Courts Covered by Article 234(3) 224 3. Exceptions to the Obligation to Refer 230 3.1. The question is not relevant 231 3.2. More courts handling the case qualify as 'court oflast instance' 232 3.3. Acte eclaire-a materially identical question has already been the subject of a preliminary ruling 233 Xll
.4. Acte clair-the correct application leaves no scope for any reasonable doubt 235 3.4.1. Acteclairand the C!LF!Tjudgment 235 3.4.2. National courts' margin of discretion under the acte clair doctrine 237 3.4.3. Acte clair and the wishes of the parties 239 3.4.4. Acte clair and the question of different language versions 242 3.4.5. Acte clair and dissenting judgments 244 3.4.6. Acte clair and rulings by other national courts 247 3.4.7. Acte clair and cases pending before the Court of Justice 248 3.4.8. Acte clair and administrative practice and legal literature 249 3.4.9. Acte clair-meeting the demands of the times 250 3.5. Other forms of preliminary references 253 3.5.1. Euratom Treaty 254 3.5.2. Justice and Home Affairs 254 3.5.2.1. Article 68 of the EC Treaty 254 3.5.2.2. Article 35 of the EUTreaty 256 3.5.3. Conventions 256 3.6. Cases on interim measures 256 3.7. Application of Community law outside the scope of Community law 257 The Obligation of Courts Other than Those oflast Instance to Make a Reference 258 4.1. Overview 258 4.2. References concerning invalidity 259 4.2.1. The duty to refer prior to a finding of invalidity 259 4.2.2. References on validity where access to refer is restricted 260 4.2.3. Findings of invalidity without (prior) preliminary reference 262 4.2.4. Evaluating the Foto-Frost doctrine 263 4.3. Deviating from the Court of Justice's interpretation of a Community legal act 264 4.4. The duty ofloyal cooperation and preliminary references 265 Consequences of a National Court Disregarding its Obligation to Make a Reference 265 5.1. Overview 265 5.2. Infringement proceedings for failure to refer 265 5.3. Failure to refer, validity of national judgments, and obligation to reopen the case-file 266 5.4. Damages for failure to refer 270 5.5. Failure to refer and Article 6 of the European Convention of Human Rights 271
7. When Ought a Reference for a Preliminary Ruling be Made? 273 1. Overview 273 2. Determining the Relevant Criteria 274 2.1. The need for judicial assistance 274 2.2. Delay and cost 278 2.3. The wishes of the parties 279 2.4. The wish not to overload the Court ofjustice 283 2.5. Similar cases are pending 284 3. From which Court should a Reference be Made? 288 4. At what Stage in the Main Proceedings should a Reference be Made? 290 8. The Form and Content of a Reference 295 1. Introduction 295 2. The Form of the Reference 297 3. The Content of a Reference 298 3.1. The need for a thorough order for reference 298 3.2. Guidelines for the drafting of a reference for a preliminary ruling 303 3.2.1. Introduction 303 3.2.2. Identification of the question referred 304 3.2.3. Information about the facts 308 3.2.4. Information about national law 312 3.2.5. The order for reference must be understandable without the need to refer to other documents 313 3.2.6. Requesting the application of the urgent preliminary ruling procedure in the area of freedom, security, and justice 320 9. Proceedings before the Referring Court after a Reference has been Made 322 1. The Case Remains Pending before the National Court 322 2. Appeal against a Decision to Make a Preliminary Reference 325 3. Interim Relief 329 3.1. Overview 329 3.2. The competence of national courts to order interim relief 329 3.2.1. Possible conflicts between national law and Community law 329 3.2.2. Possible conflicts between different Community rules 330 3.3. The conditions for granting interim relief 334 3.3.1. Overview 334 3.3.2. Doubt as to validity 335 XlV
3.3.3. Urgency 3.3.4. Balancing the interests DIBLIOTECA CONJU H~IID 337 338 10. The Procedure before the Court ofjustice 340 1. Overview 340 2. Notification of the Decision to Make a Reference 341 3. Observations on the Preliminary Reference 343 3.1. Those entitled to submit observations 343 3.2. Observations by Community institutions and Member States 347 3.3. Influencing the scope of the preliminary ruling through the presentation of observations 351 3.3.1. The preliminary ruling procedure does not have any parties stricto sensu 351 3.3.2. The subject matter of the preliminary question 352 3.3.3. Supplementing or departing from the facts of the reference 355 3.3.3.1. The main rule 355 3.3.3.2. Supplementing the referring court's description of the facts 356 3.3.3.3. The facts presented in the reference are being disputed 358 3.3.3.3.1. The degree offact-finding performed by the referring court 358 3.3.3.3.2. Undisputed facts that arise after the reference is made 359 3.3.3.3.3. A party corrects information on the facts against his own interest 359 3.3.3.3.4. Those entitled to present observations disagree on the correction of a fact 360 3.3.3.3.5. Cases concerning the validity of Community rules 362 3.3.3.3.6. Rules of evidence 363 3.3.3.4. Departing from the referring court's interpretation of national law 365 3.3.3.5. The Court of Justice's access to information on the facts and on national law 367 4. The Procedure before the Court of]ustice 369 4.1. Representation 369 4.2. Language 4.3. The written proceedings 4.3.1. Introduction 4.3.2. Deadlines and requirements regarding submission of observations 370 372 372 373 XV
4.3.3. Content and structure of written observations 374 4.3.4. Length of the written observations 377 4.3.5. The Report for the Hearing 377 4.4. The oral procedure 378 4.4.1. Not all cases are heard orally 378 4.4.2. Setting the date for the oral hearing 379 4.4.3. Time allowed for addressing the Court 379 4.4.4. Content and conduct of the oral hearing 380 4.4.5. Considerations pertaining to interpretation 383 4.4.6. Closure of the oral procedure 385 5. Expedited Procedures 385 5.1. Overview 385 5.2. The accelerated procedure laid down in Article 104a of the Court's Rules of Procedure 386 5.2.1. Procedure 386 5.2.2. The notion of'exceptional urgency' 387 5.3. The urgent procedure in the area of freedom, security, and justice 390 5.3.1. Overview of the urgent procedure 390 5.3.2. Conditions for the application of the urgent preliminary ruling procedure 391 5.3.3. The decision whether or not to apply the urgent procedure 392 5.3.4. The written procedure 394 5.3.5. The oral observations in the urgent procedure 395 6. Gathering of Further Evidence and Reopening the Oral Proceedings 395 11. The Preliminary Ruling 400 1. Judgment or Order? 400 2. Reformulating the Question Referred 403 2.1. Overview 403 2.2. The preliminary question is narrowed down 405 2.3. Inclusion of other Community law provisions 408 2.4. Alternative answers 411 2.5. Potentially relevant issues that do not form part of the preliminary reference 413 2.6. Questions on the validity of a Community provision 418 3. Tailoring the Preliminary Ruling to the Facts of the Case 419 3.1. The extent to which the Court of Justice itself makes the legal classification of the facts 419 3.2. The nature of the question 421 XVl
3.3. The content and formulation of the preliminary reference 423 3.4. Policy considerations 424 3.5. The work load of the Court of Justice 427 3.6. New legal principles 429 12. The Effects of the Preliminary Ruling 431 1. Introduction 431 2. The Effects of a Preliminary Ruling for the Main Proceedings 432 2.1. National courts dealing with the case 432 2.2. The parties to the main proceedings 440 3. The Effect of a Preliminary Ruling in Other Cases 441 3.1. Other national courts 441 3.2. Parties in other national proceedings, Community institutions, and Member States 444 3.3. The Court of)ustice 444 4. The Legal Significance of the Opinions of the Advocates General 445 5. The Temporal Effect of a Preliminary Ruling 445 5.1. The main rule 445 5.2. Circumstances which justify limiting the temporal effect 446 5.2.1. Overview 446 5.2.2. Lack oflegal clarity and good faith 447 5.2.2.1. General considerations 447 5.2.2.2. The behaviour of Community institutions 450 5.2.2.3. Legitimate expectations for Member States? 453 5.2.3. Serious financial consequences 454 5.2.4. Relationship to pending proceedings 457 5.2.5. Temporal limitation in cases concerning the validity of Community measures 457 6. Interpretation and Revision of a Preliminary Ruling 458 13. Litigation Costs and Legal Aid 460 1. Litigation Costs 460 2. Legal Aid 461 Bibliography 463 Index 475