PRELIMINARY RULING PROCEDURE Conf. univ. dr. Radu Stancu, Lect. univ. dr. Viziteu Mădălina

The reference for a preliminary ruling is a fundamental mechanism of European Union law aimed at enabling the courts and tribunals of the Member States to ensure uniform interpretation and application of that law within the European Union.

The Court of Justice of the European Union has jurisdiction to give preliminary rulings on the interpretation of Union law and on the validity of acts adopted by the institutions, bodies, offices or agencies of the Union.

The Court of Justice alone currently has jurisdiction to give preliminary rulings.

The Court’s role is to give an interpretation of European Union law or to rule on its validity, not to apply that law to the factual situation underlying the main proceedings.

 

This study aims to discuss a series of questions that can be generated by the preliminary ruling procedure before the Court of Justice of the European Union.

A first question is whether the determinations given by the Court could be prejudgments generating incompatibilities.

Preliminary ruling procedure of the Court of Justice of the European Union was established as provided in the Treaties, either to provide means for establishing the validity of the Union law or to provide its interpretation.

This procedure was designed so that the Court may not apply this law to the factual situation underlying the main proceedings, which is a task of the national court. The Court has no jurisdiction to rule on issues of fact raised in the main proceedings or to resolve any differences of opinion on the interpretation or application of rules of national law. At the same time, the Court’s interpretation should provide a useful answer to resolve the main proceedings.[1]

The problem of existence of a prejudgment is considered both in terms of exceeding the limits of interpretation by entering substantive matters and in terms of a possible reaching of the dispute on the merits, on the dockets of the Court of Justice of the European Union.

Regarding the first issue, in that judgments of the Court, inevitably must establish the existence of the substantive matter and the connection of the national rule applicable for the settlement of the proceedings before the national court, with the rule of European law. How exactly can the Court draw a boundary between interpretation and a foreshadowing of the solution which can be decided by the national court? Are there criteria, mechanisms and safeguards in this regard?

The Court of Justice of the European Union ruled that taking into account the division of responsibilities within the preliminary procedure, although the national court is the only one competent to determine the subject of the questions to refer to the Court, the Court, however, in exceptional circumstances, is competent to examine the conditions in which the national court was addressed, to verify its own competence – Judgment of 1 October 2009, Woningstichting Sint Servatius, C-567/07 Rep., ECR I-9021, section 42. The Court has also mentioned the Joined Cases C-92/09 and C-93/09, Volker und Markus Schecke GbR and Hartmut Eifert v. Land Hessen, as this is the case especially when the issue raised is purely hypothetical or the interpretation of a provision of the Union or examination of its validity required by the national court has no connection with reality or the main proceedings (see also Judgment of 15 December 1995 Bosman, C-415/93, Rec., ECR I – 4921 section 61, Judgment of 15 June 2006 Acereda Herrera, C-466/04, Rec., ECR I – 5341, section 48, Judgment of 31 January 2008, Centro Europa 7, C-380/05, Rep., ECR I – 349, section 53 and Judgment Woningstichting Sint Servatius, cited above, section 43).

 

  1. Regarding the need, in general, of interpretation of text of law

 

European Court of Human Rights, Case C.R. v. the United Kingdom 1995, estimated that as clear a text of law may be, in any legal system there is inevitably an element of judicial interpretation. This interpretation is usually made by the supreme court of that State.

At EU level, interpretation of law is made by the Court of Justice of the European Union. EU law is supreme in the Member States and has direct effect. Therefore, it is mandatory for the national court.

The interpretation given by the Court of Justice of the European Union also presents the peculiarity that its effect is reflected also on the legal relations arisen in the past, not only on future situations as for the interpretation of the supreme national court. Interpretation of the Court of Justice shall take effect at the time of its publication in the Official Gazette, ex nunc, as in Romania, while the decision given in the prior interpretation (preliminary), from the date of entry into force of the legal rule of the European Union law subject to interpretation (ex tunc).

The Judgment in the Case Kühne and Heitz v. Produktschap voor Puimvee en Eieren (Netherlands) states that the answer to the previous question explains how to be or how it should be understood and applied the rule as of its entry into force. Interpretation of the Court of Justice of the European Union has no value, constitutive legal character but declarative.

With respect to jurisdiction, the Court of Justice of the European Union in Case C-378/08 Raffinerie Mediterranee (ERG) SpA and others v. Ministero dello Sviluppo economico and others, section 31-32, stated that although (31) is not for the Court to rule on the compatibility of national provisions with the Union law, it is still competent to provide all its own elements for the interpretation of this law that are likely to enable the national court to assess its suitability to solve the case pending before the court (see also CJEU judgment of 22 May 2008, citiworks, C439/06, Rep., ECR I-3913, section 21).

(32) On the other hand, the judicial authority that is not ruling in the last instance should ultimately be free, in particular where is considered that the legal assessment performed by the higher court might determine to rule against the Union law, to address the Court with the questions subject to concern (See the Judgment of 16 January 1974 in “Rheinmühlen-Düsseldorf 166/73 Rec., ECR 33, section 4).”

National court that exercised its right to the preliminary ruling is obliged to ensure the full effect of the provisions interpreted, removing, ex officio if necessary, the application of any contrary provisions of the domestic law, not waiting to be removed by law or other constitutional procedure. It is obliged to remove the determinations of the higher court if considers that they do not comply with the Union law.

In a retrial after cassation, the retrial court, although the higher court (appeal or recourse) decision is mandatory, if considers that the determination given by the latter, is contrary to the European Union law may raise this in any procedural time.

The recommendations of the Court of Justice of the European Union (section 18)[2] state that the national court may address the Court with a preliminary ruling request immediately when finding that for the settlement needs a decision on the interpretation or validity of the Union law, being in the best position to appreciate the timing of this request. The Court recommends that the decision should be taken in a phase of the procedure when all the elements needed can be provided, to check whether the Union law is applicable in the main proceedings.

References can be designed for:

  1. a) interpretation of a provision of the Union law, required for the settlement of the main proceedings. The Court whose decisions are not subject to any appeal under the national law, is required to apply to the Court for a preliminary ruling, unless the Court has already ruled on that If the national court considers that sufficient guidance is given by the case-law of the Court, may decide on the interpretation of the Union law without having to ask for a preliminary ruling. The Court considers, however, that the preliminary reference for interpretation is particularly useful when it raises a new question of interpretation of general interest for the uniform application of the Union law or when the existing case-law does not appear to be applicable to a matter of fact which was not examined in a case in court.

The national court must present the reason of the interpretation sought to settle the case for which it needs the preliminary reference. If the court submitted more questions, the grounds must be stated for each of them.

Interpretation take effect upon entry into force of the provision of the Union law subject to clarification, specification of its meaning and scope and applies even to the legal relationships arising before the Court decision. The Court may, however, exceptionally and in the application of the general principle of legal certainty, inherent to the Union legal order, that by the judgment pronounced, to limit the possibility of the persons concerned to raise the provision interpreted in order to question the legal relationships established in good faith (T-289/03 sections 158-160 and C 161/06 section 67). In addition, pursuant to art. 264 TFEU ​​(231 TEC), the Court may, when repealing a regulation, show the irrevocable effects of the repealed regulation. Therefore, even if an act is illegal and is considered that it never existed, the Court has the competence to decide that it will still generate legal consequences and the Member States have no obligation to re-discuss the administrative or judicial decisions taken on the basis of the repealed rules, if they took effect under the rules of national law applicable in the field (C-161/06).

  1. b) validity of an act of an institution, body, office or agency of the Union. The national court must also show why it considers that such act may be declared invalid. When doubt is serious, the national court may suspend provisionally the internal act based on the invalid European rule.

The court ruled (C-333/07, sections 121 and 128), that when imperative reasons of legal security requires it, may, and during the preliminary ruling, assess the validity of acts adopted by the institutions of the European Community pursuant to art. 234 TEC. It has discretion and to indicate, in each case, the effects of the controlled act, which it considers to be definitive (see also C 228/99) in the case shown (C-333/07), the Court decided that the effects of finding the invalidity of the decision in question must be suspended, pending a new decision of the Commission under art. 88 TEC, but no more than two months of that judgment. The party of the main proceedings who lodged an action before a national court against an act declared by the Court of Justice of the European Union as invalid, can defend itself, in the main proceedings with this lack of validity (C351/04, section 2 of the judgment).

In Case C-210/06, Cartesio Oktato es Szolgaltato, the Court ruled that art. 234 EC does not preclude that the national court decisions subject to appeals under the national law, will continue to be subject to the regular appeals provided by the national law, but the solution in appeal cannot restrict the competence of this court to address the Court of Justice of the European Union, if considers that a case already underway is raising problems in interpreting the provisions of the Community law.

When a case is re-judged in a court of first instance of jurisdiction, after its annulment by a court of last instance of jurisdiction, the court of first instance of jurisdiction continues to have the freedom to address the Court, even though is held by the appreciation in law made by the judiciary control court.

Competence of the court that has made the prior reference would be compromised if in an appeal against the decision for reference, was ordered the dissolution of the preliminary reference and to continue the suspended proceedings. Responsibility for assessing the relevance and necessity of referral rests only with the court which has made it, subject to limited verification made by the Court of Justice of the European Union.

Questions formulated are presumed valid. The Court has no jurisdiction to verify the accuracy and cannot refuse to rule unless it is obvious that the question has no connection with reality or with the main proceedings, when is hypothetical, or if has no elements in fact or in law necessary to answer the question.

The Court can be requested for a preliminary ruling only by the court, not by the parties (C-296/08 PPU., section 46). If the questions concern the interpretation of the Community law, the Court is in principle bound to give a ruling (C-206/08, section 33). Assessment of the facts is solely for the national court and the Court is not empowered to rule but only on the interpretation or validity of a Community text based on the facts submitted by the national court (C-11/07 section 27 and 52. See and C-235/95).

On 26 March 2013 were 48 referrals for preliminary ruling of the courts of Romania.

 

bibliography

 

  1. Recommendations 2012-C338-01, to the attention of national courts relating to conducting preliminary ruling – OJEU 338-1 of 11.06.2012
  2. Judgment of 1 October 2009, Woningstichting Sint Servatius, C- 567/07 Rep., p. I- 9021
  3. Judgment of 15 december 1995 Bosman, C-415/93, Rec. p.I 4921
  4. Judgment of 15 june 2006, Acereda Herrera, C- 466/04, Rec., p. I – 5341
  5. Judgment of 31 january 2008, Centro Europa 7, C- 380/05
  6. C- 92/09 şi C- 93/09, Volker und Markus Schecke GbR şi Hartmut Eifert against Land Hessen
  7. Judgment of Woningstichting Sint Servatius
  8. Judgment of Kühne şi Heitz against Produktschap voor Puimvee en Eieren (Ţările de Jos)
  9. C-378/08 Raffinerie Mediterranee (ERG) SpA and Others v. Ministero dello Sviluppo economico and Others
  10. Judgment CJUE of 22 May 2008, citiworks, C439/06, Rep., p I-3913
  11. Judgment of 16 january 1974 “Rheinmühlen-Düseldorf, 166/73 Rec
  12. JOUE 338/1 of 06.11.2012
  13. Judgment of Société Régie Networks against Direction de contrôle fiscal Rhône-Alpes Bourgogne, C-333/07
  14. Judgment of 8 noiembrie 2001 Silos e Mangimi Martini SpA against Ministero delle Finanze C 228/99
  1. Judgment of the Court(Grand Chamber) of 22 December 2008SociétéRégie NetworksDirection decontrôlefiscalagainstRhône-Alpes BourgogneC-333/07
  2. Judgment of the Court(Second Chamber) of 27 September 2007Ikea WholesaleLtd vCommissioners of Customs& ExciseC-351/04
  3. Judgment of the Court(Grand Chamber) of 16 December 2008CartesioOktatóésSzolgáltatóbtC-210/06
  4. Judgment of the Court(Third Chamber) of 12 August 2008PedroIgnacioGoicoecheaC-296/08PPUSantesteban
  5. Judgment of the Court(Third Chamber) of 10 September 2009undWasser-und GothaAbwasserzweckverbandLandkreisgemeinden(WAZV Gotha) againstEurawasserAufbereitungsEntsorgungsgesellschaftmbHundC-206/08
  6. Judgment of the Court(Third Chamber) of 11 September 2008HansEckelkampand Others vBelgischeStaatC-11/07

Judgment of the Court(Sixth Chamber) of16 July 1998AGSAssedicPas-de-CalaisagainstFrançoisDumonandFroment,mandataireliquidateurdesEtablissementsPierreGilsonC-235/95

[1] Recommendations 2012-C338-01, to the attention of national courts relating to conducting preliminary ruling – OJEU 338-1 of 06.11.2012, sections 7 and 8.

[2] OJEU 338/1 of 06/11/2012

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