Preliminary ruling

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According to Art. 267 of the Treaty on the Functioning of the European Union (TFEU), the European Court of Justice (ECJ ) decides on submission or referral to the court of a member state by way of a preliminary ruling on the interpretation of the Treaty on European Union and the Treaty on the functioning of the European Union as well as on the validity and interpretation of the legal acts of the institutions, bodies or other agencies of the Union ( secondary law ). The decisions are binding on the courts of the member states. The preliminary ruling procedure is intended to ensure the consistency of the case law of the courts of the Member States with regard to EU law. Around half of all proceedings pending at the ECJ are preliminary ruling proceedings.

National courts have the right to make a reference and the obligation to make a reference

If a corresponding question of interpretation arises in the course of legal proceedings before a court of a member state of the European Union , this court has the option of referring the question to the ECJ for decision . If such a question arises in proceedings before a court of last instance , it is fundamentally obliged to appeal to the ECJ. Courts of last instance within the meaning of the obligation to appeal are not only the highest courts of the respective jurisdiction, but every court whose decision in a specific case can no longer be appealed.

An exception to the submission obligation of a court of last instance exists in the event of an acte clair .

The former special to Art. 68 of the Treaty for legislation in the fields of visas, asylum, immigration and free movement of persons , after which the lower courts had no original law, but only the last instance decisive courts, as part of the changes introduced by the Lisbon Treaty since dropped on December 1, 2009.

Better monitoring of the submission requirement is required

The plenary session of the EU Parliament adopted a resolution on June 14, 2018 in response to the EU Commission's report on monitoring the application of EU law in 2016. Among other things, it addresses the importance of requests for preliminary rulings for uniform interpretation and the application of Union law (margin no. 38) and called on the EU Commission to monitor more effectively whether the national courts are complying with their submission obligation regulated in Art. 267 TFEU. In this context, the German Lawyers' Association demands the creation of a non-submission register in which all submissions that have been refused due to the Acte Clair doctrine must be entered.

Functions of the preliminary ruling procedure

The preliminary ruling procedure is intended to dovetail national and European jurisdictions. The ECJ and the national courts exercise their judicial activity side by side due to different competences. In order to prevent a divergent interpretation and application of Union law by the courts of the member states, a type of procedure had to be introduced that enables a certain degree of cooperation between these jurisdictions in order to preserve legal unity.

The further function of the preliminary ruling is to guarantee a binding interpretation and validity check. Therefore, the ECJ is responsible for the interpretation of all primary and secondary Union law as well as for checking the validity of actions of the Union bodies.

With the Foto-Frost ruling of 1987, the ECJ established a monopoly on rejection of Union legal acts.

Procedure

The procedure is regulated in the Statute of the Court of Justice of the European Union and the Rules of Procedure of the Court of Justice. The preliminary ruling procedure is not designed as a litigation procedure, but as an objective procedural interim procedure. The proceedings will be publicly negotiated. The states and organs involved are represented by an authorized representative. The same rules of representation apply to the parties as before the referring national court.

After the national court has suspended the proceedings before it, it applies for a preliminary ruling and sends its decision and the questions referred for a preliminary ruling to the Court of Justice. In particular, the court must state the subject matter of the main proceedings, the main arguments of the parties to the main proceedings, the reasons for the submission as well as the case law cited and the EU and national provisions cited.

The parties to the main proceedings, the Member States, the Commission and, where appropriate, the Union institutions, bodies or offices which gave rise to the act, the validity or interpretation of which is at issue, are involved in the proceedings and have two months' notice after the decision of the national court has been served on them by the Chancellor of the European Court of Justice, to comment on the question referred by submitting pleadings or submitting written observations to the Court of Justice. The same applies to states party to the Agreement on the European Economic Area that are not member states, and to the EFTA surveillance authority if one of the areas of application of the agreement is affected.

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Individual evidence

  1. ↑ cf. ECJ, judgment of June 4, 2002 - C-99/00 , margin no. 14 f.
  2. ↑ Resolution of the European Parliament of 14 June 2018 on monitoring the application of EU law in 2016. P8_TA-PROV (2018) 0268, (2017/2273 (INI)).
  3. ↑ Report of the Commission, Monitoring the application of EU law - 2016 annual report , 6 July 2017, COM (2017) 370 final.
  4. ↑ Europe at a Glance, 24/18 .
  5. ↑ ECJ, judgment of October 18, 1990, case C-297/88 and C-197/89 Coll. I 1990, p. 3763 ( Dzodzi ), paragraph no. 31-38.
  6. ↑ Practical instructions for the parties in the cases before the Court of Justice , accessed on September 21, 2014 In: Official Journal of the European Union . Paragraph 3.