Guide to preliminary ruling proceedings before the Court of Justice EC Updated until March 1st, 2004 Preface This guide to preliminary ruling proceedings before the Court of Justice EC (ECJ) appears under the auspices of the Dutch ‘Euro Group’ [the Euro Group is an informal working group of the Netherlands Association for the Judiciary (the association for judges and public prosecutors); the aim of the working group is to study the developments in European Community Law and the decisions of Dutch judiciary bodies in the field of European Community Law]. The guide is made by J.W. van Wetten former projectcoordinator EURINFRA and policyadvisor at the Dutch ministry of Justice. The final editing was done by: M.J. Kuiper (member of the College van Beroep voor het bedrijfsleven (Dutch Appeals Tribunal for Trade and Industry), court co-ordinator for European law) and Dr R.H. Lauwaars (member of the Raad van State (Dutch Council of State), court coordinator for European Law). Disclaimer This guide is meant for information purposes and is not binding in any respect. The guide aims at providing practical suggestions in the light of the experiences gained in the Netherlands from the application of the preliminary ruling proceedings. Expand all General The development of the legal order of the European Community depends on the cooperation between the Court of Justice EC and the national courts by means of the preliminary ruling proceedings of article 234 of the EC Treaty. Characteristics and functions of preliminary ruling proceedings The Court of Justice and the national courts are deemed equivalent judicial bodies. Consequently, the preliminary ruling proceedings are not characterised by hierarchy but by cooperation which requires the national court and the Court of Justice - both within their own jurisdiction – each to make direct contributions to achieve a decision. Case 16/65, Schwarze The most important function of the preliminary ruling proceedings is to ensure a uniform interpretation of Community law. Secondly, the proceedings facilitate the application of Community law by offering national courts a helping hand in resolving the problems, which sometimes accompany the application of Community law. Case 166/73, Rheinmühlen, para. 2-3 Thirdly, the preliminary ruling proceedings may serve as a means to protect the rights, which citizens derive from Community law. Preliminary ruling proceedings in short The rules for the proceedings before the Court of Justice have been laid down in the Protocol on the Statute of the Court of Justice and the Rules of Procedure of the Court of Justice. Request The proceedings start with a request from a national court (the order for reference). This judgment is translated into all other official Community languages, after which it is transmitted to the parties in the main action, the member states and the Commission. The Court of Justice may ask the referring court to provide further clarification in the course of the proceedings. Hearing of the case The parties, the member states, the Commission and, where appropriate, the European Parliament and the Council have only one opportunity to submit written observations. After the judge-rapporteur has delivered his so-called report for the hearing, the parties and the authorities and institutions mentioned above may orally elucidate their position at the hearing. Some months after the hearing, the Advocate-General will deliver his opinion. There is no opportunity for the parties to give their reaction to this opinion. Judgment Some months after the Advocate-General has delivered his opinion, the Court of Justice will issue judgment in open court. The judgment is binding from the date it is rendered. Division of competences between the Court of Justice and the national courts The Court of Justice shall ensure that in interpreting and applying the Treaty the law is observed. For this purpose the Court of Justice, inter alia, has jurisdiction to give preliminary rulings concerning the interpretation of the Treaty and the validity and interpretation of the acts of the institutions of the Community. The national court is authorised to request the Court of Justice to give such a preliminary ruling (article 234 of the EC Treaty). Interpretation There is a clear separation of functions between national courts on the one hand and the Court of Justice on the other. The Court of Justice does not evaluate the reasons of a national court for deeming that the interpretation of a provision of Community law is necessary for giving judgment in a pending case. It is for the Court of Justice to issue the interpretation of the provision and for the national court to apply it subsequently. Case 5/77, Tedeschi/Denkavit, para 17-20 Validity The Court of Justice decides on the validity of acts of the institutions of the Community, i.e. regulations, directives and decisions. In preliminary ruling proceedings concerning the validity, all the grounds for declaring such acts void (articles 230 and 231 of the EC Treaty) may be put forward, i.e. lack of competence; infringement of an essential procedural requirement; infringement of the treaty or any rule of law relating to its application; and misuse of powers. In addition, the Court of Justice may review the validity of acts in the light of provisions of international law which are binding on the Community and which have direct effect. Joined cases 21-24/72, International Fruit Company, para. 5 and 6 Joined cases C-300/98 and C-392/98, Parfums Christian Dior SA, para. 42 A national court may reject the grounds of invalidity, but it has no power to declare Community decisions to be void. However, if a national court has serious doubts as to the validity of an act of a Community institution on which a national law or decision is based, the court may, in special cases, suspend the application of such act or may order any other interim relief with regard to such act. The national court should subsequently refer the question of validity to the Court of Justice, setting out why it believes that the Community act must be considered invalid. Case 314/85, Foto-Frost, para. 13-20 Joined cases C-143/88 and C-92/89, Zuckerfabrik, para. 23-32 Case C-465/93, Atlanta, para. 28-32 Other preliminary ruling proceedings (than article 234 EC Treaty) Article 68 EC Treaty The proceedings of article 68 EC Treaty are meant for questions on asylum, immigration and civil law and differ from the ordinary proceedings in that: lower national courts do not have the competence to request for a preliminary ruling; the Court of Justice does not have the competence to review decisions of the Council to abolish border controls or decisions relating to the maintenance of law and order or the safeguarding of internal security. Article 35 EU Treaty The preliminary ruling proceedings provided for police and judicial cooperation in criminal matters (EU Treaty, Title VI) are also different from the proceedings of article 234 EC Treaty. Firstly, the proceedings are optional, i.e. a member-state should explicitly accept them by making a declaration to that effect. In doing so, a member-state has two options to choose from: it may specify that either all courts and tribunals or only the highest ones are authorised to request a preliminary ruling (article 35(3) EU Treaty). In the latter case, a member-state may also impose an obligation to refer on the highest courts (see Declaration no. 10 to the Treaty of Amsterdam). Secondly, the Court of Justice has no jurisdiction to review the validity or proportionality of operations carried out by the police or other services of a member-state in charge of maintaining law and order and safeguarding internal security (article 35(5) EU Treaty). Joined cases C-187/01 (Gözütok) and C-385/01 (Brügge), para. 1 When to refer Non obligatory reference "Court or tribunal" When assessing whether the referring body is a court or tribunal as understood by article 234 of the EC Treaty, the Court of Justice takes into account a number of factors. Case C-54/96, Dorsch Consult, para. 23 Case C-178/99, Doris Salzmann, para. 13-15 "Necessary" According to the Court of Justice it is up to the national courts (both the lower courts and the highest court(s)) before which actions are brought and are responsible for the subsequent judicial decision to assess, in the light of the special features of each case, whether a preliminary ruling is required. However, a request from a national court may be dismissed by the Court of Justice if: the question is not relevant in the sense that the answer to that question, regardless of what the answer may be, in no way can affect the outcome of the case; the requested interpretation of Community law bears no relationship to the actual facts; the problem is hypothetical; or the Court has not been provided with the factual or legal material necessary to give a useful answer on the questions submitted. Case C-318/98, Fornasar and others, para. 27 and 31 Case 283/81, CILFIT, para. 10 Case C-355/97, Landesgrundverkehrsreferent, para. 18-22 Obligatory reference According to article 234(3) EC Treaty, a court is under the obligation to refer where a question relating to the interpretation or validity of Community law is raised in a case pending before a court or tribunal of a member-state against whose decisions there is no judicial remedy. Case 6/64, Costa/ENEL Exceptions to obligatory reference The obligation for the highest court to refer may lose its absolute character in a number of cases. Acte éclairé The highest court is not under an obligation to refer if the question that has arisen has already been answered in an earlier judgment of the Court of Justice. Joined cases 28-30/62, Da Costa and Schaake Case 283/81, CILFIT, para. 14-15 Acte clair The highest court is not obliged to refer either if the question has not yet been answered in the case law of the Court of Justice, but the answer to that question is beyond all doubt. Before it comes to the conclusion that such is the case, the national court or tribunal must be convinced that the matter is equally obvious both to the courts of the other member states and to the Court of Justice. In this respect the national court should bear in mind that: the interpretation of a provision of Community law involves a comparison of the different language versions of the provision concerned; terms and concepts in Community law do not necessarily have the same meaning as the laws of the various member states; every provision of Community law should be interpreted in the light of Community law as a whole, taking into consideration its objectives and its state of development at the moment of application of the provision in question. Case 283/81, CILFIT, para. 16-20 National interlocutory proceedings (interim cases) and preliminary ruling proceedings There is no obligation for the highest court to refer either when giving judgment in interlocutory proceedings, provided that each of the parties is entitled to institute normal proceedings on the substance of the case or to require that. Joined cases 35/82 and 36/82, Morson and Jhanjan, para. 10 Ex officio reference Reference is not limited to cases where one of the parties to the main action has taken the initiative of raising a point concerning the interpretation or the validity of Community law, but is also possible in cases in which a question of this kind is raised by the national court or tribunal of its own accord. Case 126/80, Salonia, para. 5-10 Case 283/81, CILFIT, para. 9 How to refer Structure of the order for reference The judgment or order in which the court submits a question for a preliminary ruling should contain a brief statement of the reasons as well as all the information necessary for the Court of Justice and for those on whom the judgment must be served (the member-states, the Commission and, when appropriate, the Council and the European Parliament) for a proper understanding of the factual and legal framework of the main action. Case C-320/90, Telemarsicabruzzo, para. 6 Elements of the order for reference It is helpful to include the following elements, or an exposition of such elements, in the judgment or order: the facts which are essential to understand the legal scope of the main action; the applicable national law; the parties' positions; the reasons why the court is submitting the question to the Court of Justice; where appropriate, the court's own opinion on the issue of Community law raised; the specific question(s) in the operative part. In addition, the file of the case must be sent on to the Court of Justice together with the order for reference. See the Information Note on references by national courts for preliminary rulings, published by the Court of Justice EC. Phrasing of questions Hearing the parties first In the interests of the proper administration of justice, it may be useful for a national court to hear the parties about the contents of the questions before giving the order for reference. Case 70/77, Simmenthal, para. 10 Questions on interpretation The Court of Justice is the sole body, which has the competence to interpret Community law. The Court of Justice may not decide on questions relating to the interpretation or validity of provisions of national law, nor is it up to the Court of Justice to apply Community law to the facts in the main action before a national court. However, the Court of Justice is prepared, within certain limits, to reformulate questions, which are too far-reaching. Questions on validity Only the Court of Justice has the competence to declare acts of the institutions void. The Court of Justice cannot answer questions, which are aimed at having the provisions of the Treaty declared void. Effect of the preliminary ruling A preliminary ruling binds the national court that requested the judgment as well as all bodies, which may have to decide the same case on appeal. Although the decision is binding, the court may request a second preliminary ruling in the same case. Case 29/68, Milch-, Fett- under Eierkontor, para. 2-3 Preliminary rulings do not bind courts in other cases. However, these courts should realise that the interpretation of the Court of Justice is incorporated in the provisions and principles of the Community law to which it relates. The binding effect of the interpretation then simply coincides with the binding effect of the provisions and principles to which it relates and which has to be observed by all the national courts of the member-states. If an act of an institution of the Community is declared void in a judgment, this is sufficient reason, not only for the referring court, but also for any other national court of the member-states, to consider that act as void. However, should the national court have doubts as to the grounds, the scope and possibly the consequences of the nullity established earlier, then this court is free to raise a question before the Court of Justice once again. Case 66/80, International Chemical Corporation, para. 18
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