Preliminary ruling proceedings – recommendations to national courts

KEY POINTS

It should be noted that the CJEU comprises the Court of Justice and the General Court. Their purpose is to ensure a uniform interpretation and application of EU law.

Amendment to the Statute of the CJEU

Amending Regulation (EU, Euratom) 2024/2019 adapts Protocol (No 3) and aims to reduce the Court of Justice’s heavy workload in the area of preliminary rulings. It transfers jurisdiction, as from 1 October 2024, from the Court of Justice to the General Court to give preliminary rulings in six clearly defined and discrete areas:

• the common system of value-added tax;
• excise duties;
• the Union Customs Code;
• the tariff classification of goods under the combined nomenclature;
• compensation and assistance for passengers whose transport services are delayed or cancelled or who are denied boarding; and
• the scheme for greenhouse gas emission allowance trading.

Significance of the preliminary ruling procedure

This procedure is considered useful when, in a case before a national court, a question of interpretation that 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 procedures² or urgent procedures³.

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 Court of Justice.

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

• A referral must concern the interpretation or validity of EU law. It must not concern the interpretation of national law or issues of fact raised in the main proceedings.
• The Court of Justice determines whether the request falls exclusively within one or several of the six specific defined areas listed above and decides whether the request is to be transmitted to the General Court.
• The Court of Justice and the General Court may only give a ruling if EU law applies to the case in the main proceedings.
• The Court of Justice and the General Court do not themselves apply EU law to a dispute brought by a referring court, as their role is to help resolve it. The role of the national court is to draw conclusions from the Court of Justice’s or the General Court’s ruling.
• Preliminary rulings are binding both on the referring court and on all courts in Member States.
• The European Parliament, the Council of the European Union and the European Central Bank are notified of all requests for a preliminary ruling to allow them to assess whether they have a particular interest in the matter and decide whether they wish to exercise their right to submit statements of case or written observations.

Interaction between the reference for a preliminary ruling and the national proceedings

• A referral should be made as soon as it is clear that a preliminary 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 that it raises.
• The national proceedings must be stayed until the Court of Justice or the General Court has given its ruling.
• The referring court must inform the Court of Justice or the General Court of any procedural step that may affect the referral and, in particular, of any discontinuance or withdrawal, or of any amicable settlement of the dispute in the main proceedings, and of any other event leading to the termination of the proceedings. It must also inform the Court of Justice or the General Court of any decision delivered in the context of an appeal against the order for reference and of the consequences of that decision for the request for a preliminary 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 Member States to submit their observations.
• Article 94 of the Rules of Procedure of the Court of Justice and Article 199 of the Rules of Procedure of the General Court specify the content of the request that should accompany the referring court’s questions, the essential points of which are summarised in the annex to the recommendations. If one or more of these requirements are not met, the respective courts may find it necessary to decline jurisdiction to give a preliminary ruling on the questions referred or dismiss the request for a preliminary ruling as inadmissible.
• The referring court may briefly set out the main arguments of the parties to the main proceedings. However, it should be noted that only the request for a preliminary ruling will be translated, not any annexes to that request.
• The referring court may also briefly state its view on the answer to be given to the questions referred for a preliminary ruling. That information may be useful to the Court of Justice or the General Court, particularly where it is called upon to give a preliminary ruling in an expedited or urgent procedure.
• The questions referred for a preliminary ruling must appear in a separate and clearly identified section of the order for reference, preferably at the beginning or the end. It must be possible to understand them on their own terms, without it being necessary to refer to the statement of the grounds for the request.
• The request for a preliminary ruling must be in typewritten form and the pages and paragraphs of the order for reference must be numbered.

Data protection and anonymisation of the request for a preliminary ruling

• To ensure optimal protection of personal data in the handling of the case by the Court of Justice or the General Court, the referring court is invited to anonymise the case by replacing the names of individuals referred to in the request, for example by using initials or a combination of letters, or by editing out information that might enable them to be identified.

Transmission to the Court of Justice of the request for a preliminary ruling

• All referrals must be dated, signed and sent electronically or by post to the Court of Justice’s registry in Luxembourg.
• The Court of Justice and the General Court recommend that national courts and tribunals use the e-Curia application.
• The request for a preliminary ruling must reach the registry together with all the relevant documents and documents useful for the courts’ handling of the case and, in particular, the precise contact details of the parties to the main proceedings and their representatives, if any, along with the file of the case in the main proceedings or a copy of it.

Costs and legal aid

• Preliminary ruling proceedings before the Court of Justice and the General Court are free of charge.
• The referring court rules on the costs incurred by the parties, where necessary.
• If a party to the main proceedings has insufficient means, the court in question may grant that party legal aid to cover the costs, particularly those in respect of its representation, which it incurs before the court. That aid can, however, be granted only if the party in question is not already receiving aid under national rules or to the extent to which that aid does not cover, or covers only partly, costs incurred before the court.

Role of the Court of Justice’s 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 Court of Justice’s or the General Court’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

• As provided for in the Statute and in the Rules of Procedure of the Court of Justice and of the General Court, it may be decided that some referrals should be handled by means of expedited or urgent procedures.
• Deadlines are shorter. For example, there is less time allowed for Member States 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 should be sent by means of the e-Curia application or by email.