Preliminary Reference Procedure Eu Law Essays
The phrase you put for query, ‘Preliminary Reference Procedure’ is, according to Bromberg and Fenger (2010) a provisional terminology of the European Union law under the jurisdiction of the European Court of Justice (ECJ) that indicates the provision the national court or tribune to refer a question of the EU law to the ECJ for preliminary ruling so as to enable the national court to decide the case before it on receiving that ruling. From this angle, you can consider that the functioning of the preliminary reference procedures ensures the uniformity of interpretation and validity of the EU law across all the member states in the union. In an over view, (Harris & Horspool, 2010, pp. 3-5) the preliminary reference procedure is constituted as per the guidance of Article 267 TFEU that says that if a question is raised before any court or tribunal of a Member State, and if the court considers that the decision on the question is necessary to enable it to give judgement, that court may require the Court of Justice to give a ruling of the case thereon. Simply speaking, you can consider this as the tool of the state courts at times of critical decision makings on special issues with the consolidation of the ECJ. You need to further focus on the fact that the ECJ relies on its co-operation with national courts in taking decision on the appeal of national courts. In most cases related to such conditions, the CEJ leads the role in the decision making and the national courts go in submission to ECJ in the process of co-operation and therefore, are normally guided by the EU judiciary. The preliminary reference procedure guarantees the dominance of the ECJ as it gets the legal assistance of the EU laws system and therefore the cases handled by the ECJ sometimes provide controversial options of discretionary power to the national courts, particularly in situations related to arbitrations on employment and industrial relation disputes. For instance, if you take the disputes on issues like indirect discrimination, the EC is supportive to the benefit of employers but at the same time, this issue is sent to the national court for the review of the general principle of proportionality of the case on objective grounds. Reports and statistics may be of the effect of fading the effectiveness of the upper court’s judiciary system to decide on certain identical issues of national important, which are usually pertaining to industrial disputes; however, the system of Preliminary Reference Procedure is presently the most popular channel that connects national courts with the ECJ. For further clarity, I would like you to refer Article 254TFEU; it explains to you the validity of equality of decision making between the two courts in its original phase of inception of the law. The procedure functioned in a vicious circle that channelled the move of a question from the discretionary powers of the national court; from there, the ECJ takes into consideration, the legality of the case under the provisions of the EU law relevant to the issue and guides the national court to take the decisions accordingly. The prominence of the law-making process based on the preliminary reference procedure has been emerged as a result of the upper hand of the ECJ on the national courts whereby each decree of the ECJ becomes the decision unanimously approved and followed by other national courts in the Union (Role of National Courts inEuropean Law 8, Dec, 2006). You can thus observe that the new tendency among the national courts paved the way for the development of EU judicial system by placing the ECJ as the Apex Court. Also, this new move ...Show more
Preliminary ruling proceedings — recommendations to national courts
Recommendations to national courts on the use of the preliminary ruling procedure
Article 267 of the Treaty on the Functioning of the European Union (TFEU)
WHAT IS THE AIM OF THE RECOMMENDATIONS AND OF ARTICLE 267 OF THE TFEU?
These recommendations explain to courts and tribunals in EU countries the purposes of a procedure which entitles them, under Article 267 of the TFEU to refer to the Court of Justice of the EU (CJEU) for a preliminary ruling. This procedure is used in cases where the interpretation or validity of an EU law is in question, and:
- where a decision is necessary for a national court to give judgment; or
- where there is no judicial remedy under national law.
The recommendations also detail the scope of the procedure and the form in which national courts should submit their referral.
They supplement Articles 93 to 118 of the CJEU’s Rules of Procedure.
Significance of the preliminary ruling procedure
This procedure is considered useful when, in a case before a national court, a question of interpretation which is new and of general interest for the uniform application of EU law is raised, or where the existing case-law does not appear to give the necessary guidance to deal with a new legal situation.
Structure of the recommendations
A set of recommendations applies to all requests for a preliminary ruling and a further set specifically applies to expedited procedures* or urgent procedures*.
Who makes the request for a preliminary ruling?
The national court or tribunal before which a dispute is brought takes sole responsibility for determining both the need for a request for a preliminary ruling and the relevance of the questions it submits to the CJEU.
Courts submitting a referral should, among other things:
- be established by law and be permanent;
- have compulsory jurisdiction;
- apply the rules of law; and
- be independent.
Subject matter and scope
- Importantly, a referral must concern the interpretation or validity of EU law not national law nor issues of fact raised in the main proceedings.
- The CJEU may only give a ruling if EU law applies to the case in the main proceedings.
- The CJEU does not itself apply EU law to a dispute brought by a referring court, as its role is to help resolve it; the role of the national court is to draw conclusions from the CJEU’s ruling.
- Preliminary rulings are binding both on the referring court and on all courts in EU countries.
Timing of referral and the staying of national proceedings
- A referral should be made as soon as it is clear that a CJEU ruling is necessary for a national court to give judgment and when it is able to define in sufficient detail the legal and factual context of the case and the legal issues which it raises.
- The national proceedings must be stayed until the CJEU has given its ruling.
Form and content of the referral
- The referral must be drafted simply, clearly and precisely given that it will need to be translated to allow other EU countries to submit their observations.
- Article 94 of the CJEU’s Rules of Procedure specifies the content of the request which should accompany the referring court’s questions, the essential points of which are summarised in the annex to the recommendations.
- All referrals must be dated, signed and sent by registered post to the CJEU’s registry in Luxembourg.
Costs and legal aid
Preliminary ruling proceedings before the CJEU are free of charge. The referring court rules on the costs incurred by the parties, where necessary.
Role of the CJEU registry
- The registry liaises with the referring court during the proceedings and sends it copies of all procedural documents and requests for information.
- At the end of the proceedings, the registry sends the CJEU’s decision to the referring court. The referring court should keep the registry informed of any action taken and of its final decision in the case.
Expedited and urgent referrals
- Under Articles 105-107 of its Rules of Procedure, the CJEU may decide that some referrals should be handled by means of expedited or urgent procedures.
- Deadlines are shorter, for example to allow EU countries to submit observations in the case of expedited referrals.
- The referring court must justify the urgency, pointing out the potential risks in following the ordinary procedure.
- Requests for an expedited or urgent procedure may initially be emailed or faxed to the CJEU registry.
FROM WHEN DO THE RECOMMENDATIONS APPLY?
They replace previous recommendations issued in 2012 and apply as of 25 November 2016.
Expedited procedure: a procedure where the nature of the case and exceptional circumstances require it to be handled quickly.
Urgent procedure: a procedure applying only in cases involving questions relating to freedom, security and justice. In particular, it limits the number of parties authorised to submit written observations and allows, in cases of extreme urgency, for the written stage of the procedure to be omitted before the CJEU.
Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (OJ C 439, 25.11.2016, pp. 1-8)
Consolidated version of the Treaty on the Functioning of the European Union — Part Six — Institutional and financial provisions — Title I — Institutional provisions — Chapter 1 — The institutions — Section 5 — The Court of Justice of the European Union — Article 267 (ex-Article 234 TEC) (OJ C 202, 7.6.2016, p. 164)
Consolidated version of the Treaty on European Union — Title III — Provisions on the institutions — Article 19 (OJ C 202, 7.6.2016, p. 27)
Rules of Procedure of the Court of Justice (OJ L 265, 29.9.2012, pp. 1-42)
Amendment of the Rules of Procedure of the Court of Justice (OJ L 173, 26.6.2013, p. 65)
last update 16.02.2018