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The Preliminary Ruling Procedure Under Article 267 TFEU
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Lecture notes of 5 pages for the course Constitutional Foundations in the EU at UoS (.)
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The Preliminary Ruling Procedure Under Article 267 TFEUCourt of Justice of the EU (CJEU)
Art 19 TEU.
Judge from each Member State.
27.
Advocates General who give (non-binding) opinions.
11.
Sit in Chambers.
Lower division – General Court.
Judgments of the CJEU
The judgment is that of the entire Court – i.e. not dissenting opinions.
Opinion of the Advocate General is only advisory in nature.
Functions of the CJEU – Art 19 TEU
Art 19(1).
The Court of Justice ‘shall ensure that in the interpretation and application of
the Treaties the law is observed’.
Art 19(3).
The Court of Justice of the EU shall, in accordance with Treaties:
(a) – rule on actions brought by a Member State, an institution or a
natural or legal person.
(b) – give preliminary rulings, at the request of courts or tribunals of
the Member States, on the interpretation of Union law or the validity
of acts adopted by the institutions.
(c) – rule in other cases provided for the Treaties.
Summary of the Jurisdictions of the Court of Justice
Art 267 TFEU.
Preliminary rulings.
Referred by national courts in pending cases.
Art 263 TFEU.
Judicial review of EU acts.
Locus standi restrictions.
Arts 258/259 TFEU.
Infringement actions.
Brought by Commission or (rarely) Member States.
What is the Preliminary Ruling Procedure?
A process enabling national courts to refer questions of EU law to the CJEU in order
to help them resolve disputes in the national courts.
IMP – the process starts and ends in the national courts.
IMP – the CJEU does not decide the merits of the domestic case.
An innovative and creative aspect of the EU judicial system.
IMP – although the Treaty of Nice (and also the Treaty of Lisbon) provided for the
transfer of some Article 267 TFEU jurisdiction over preliminary rulings to the General
, Court (Article 256(3) TFEU) in specific area laid down by the Statute of the Court of
Justice, this has yet to be implemented.
The Jurisdiction of the CJEU – EU Law
Article 267 TFEU – The Court of Justice of the EU shall have jurisdiction to give
preliminary rulings concerning:
(a) – the interpretation of the Treaties.
(b) – the validity and interpretation of acts of the institutions, bodies, offices
or agencies of the Union.
The Jurisdiction of the CJEU – National Courts
Article 267 TFEU – covers both lower and higher courts.
Where such a question is raised before any court or tribunal of a Member
State, that court or tribunal may, if it considers that a decision on the
question is necessary to enable it to give judgment, request the Court to give
a ruling thereon.
Where any such question is raised in a case pending before a court or
tribunal of a Member State against whose decisions there is no judicial
remedy under the national law, that court of tribunal shall bring the matter
before the Court.
If such a question is raised in a case pending before a court or tribunal of a
Member State with regard to a person in custody, the Court of Justice of the
EU shall act with the minimum of delay’.
The Purpose of the Preliminary Ruling Procedure
IMP – it is not an appeal process and the individual litigant is not involved in the
decision to refer.
Secures uniformity of interpretation across the EU (and thus effectiveness of EU law).
Allows (indirect) access by individuals to Court of Justice.
However – key route for developing new EU principles and multilateral effects.
Van Gend En Loos.
Francovich.
Von Colson.
Mangold.
Kucukdeveci.
Low levels of actual judicial disobedience.
Art 267 TFEU.
‘Jewel in the Crown’ of the Court’s jurisdiction.
Has been of seminal importance to the development of EU law.
The Effects of a Preliminary Ruling
Initially, relationship between national courts and the Court was horizontal and
bilateral.
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