1. PRELIMINARY RULINGS PROCEDURE
Article 234 EC Treaty

2. Lecture Aims
Understand the purpose of the preliminary rulings procedure
Know how the preliminary rulings procedure operates
Understand the circumstances in which a preliminary ruling is not ‘necessary’

3. Overview of procedure
Increasing number of cases, before the national courts, concerning Community law
National court may be faced with question of interpretation of the Community law provision
National court may seek a preliminary ruling on the point of law from the ECJ
National proceedings are adjourned pending ruling from ECJ
Interlocutory procedure

4. Article 234 (ex 177)
The Court of Justice shall have jurisdiction to give preliminary rulings concerning:
(a) the interpretation of this Treaty;
(b) the validity and interpretation of acts of the institutions of the Community and of the ECB;
(c) the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide.
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 of justice give a ruling thereon.
Where such a 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 national law, that court or tribunal shall bring the matter before the Court of Justice.

5. Purpose of the preliminary rulings procedure
to secure uniformity in the interpretation of Community law
Case 13/61 De Geus
“The progressive integration of the Treaty into the legal, social and economic life of the Member States must involve more and more frequently the application and, when the occasion arises, the interpretation of the Treaty in municipal litigation…the provisions of Article 234 must lead to a real and fruitful collaboration between the municipal courts and the Court of Justice”
Arnull calls the insertion of Art 234 " a stroke of genius". By involving the ECJ directly in litigation taking place in the national courts, the Treaty permitted the Court to promote the uniform application of Community law.
The Court has been asked to deal with questions of the most significant importance and in doing so has extended the scope and effect of Community law.

6. Purpose of the preliminary rulings procedure
Case 166/73 Rheinmühlen
“Article 234 is essential for the preservation of the Community character of law established by this Treaty and has the object of ensuring that in all circumstances the law is the same in all States of the Community”
the ECJ has a “panoramic view” of the Community and Community law

7. Preliminary rulings Interlocutory procedure Shared jurisdiction
National court ‘adjourns’ and ‘question(s)’ submitted to ECJ
ECJ provides ‘preliminary ruling’ to national court
National rules on the facts and decides outcome of the case
NOT an appeals procedure

8. Jurisdiction
The Court of Justice shall have jurisdiction to give preliminary rulings concerning:
(a) the interpretation of this Treaty*;
(b) the validity and interpretation of acts* of the institutions of the Community and of the ECB;
(c) the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide.
*Treaty includes EC Treaty and all amending Treaties, also limited jurisdiction in relation to EU Treaty (Treaty on European Union)
*Acts of institutions includes EC regulations and directives

9. PRELIMINARY RULINGS The interpretation of the Treaty
The validity and interpretation of acts of the institutions (regulations/directives/ decisions)
Not the validity of national law or the compatibility of national law with EC law
Case 26/62 Van Gend en Loos
Case 6/64 Costa v Enel
Not on the application of the Treaty
Not on the facts of the case
The Court has emphasised the limits of its jurisdiction. In Costa v Enel the Court held that the procedure gave it no jurisdiction either to apply the Treaty to a specific case or to decide upon the validity of national law in relation to the Treaty. Where the Court is asked to give a ruling on the conformity of national aw with the Treat it will invariably reformulate the question.
No jurisdiction to rule on the application of the Treaty (i.e. to the facts). However it is clear that sometimes the interpretation is so clear and unequivocal that the national courts are in little or no doubt as to how they should apply the relevant Community law- a good example of this is the case c 392/92 BT case where the court said that whilst it was in principle for the national courts to reach a decision (on state liability) in eth case the ECJ had the necessary information to make the determination itself!
Another very interesting case which raises the issue of whether the ECJ oversteps the mark is the case of Arsenal Football Club v Reed, [2002]

10. PRELIMINARY RULINGS Arsenal Football Club v Reed [2002] All ER (d) 180
English High Court expressed ‘concern’ about ECJ preliminary ruling (in Case C-206/01)

11. Any Court or Tribunal
Matter of Community law/national categorisation not conclusive
Case 246/80 Broekmeulen (Dutch Appeals Committee for General Medicine)
medical appeals tribunal
Case 102/81 Nordsee Deutsche Hochseefischerei
not an independent arbitrator

12. Any Court or Tribunal
Cases C 74 & 125/95 Criminal Proceedings against X
not an Italian prosecutor (not sufficiently independent)
Case C-416/96 El -Yassini v Secretary of State for the Hope Department
Immigration Adjudicator
It is clear that the capacity of a court or tribunal to refer is a matter of Community law and that any categorisation under national law will not be conclusive. Broekmeulen - Appeals Committee for general Medicine ( appeals from another medical body). Both organisations were private. It was not a court or tribunal but it did follow an adversarial procedure and did allow legal representation. B needed the registration of this authority before he could practice as a doctor. Court held that if a member state assigns these decisions which affect the exercise of a fundamental freedom to a body, and that body acts under a degree of government supervision, that body must have a right to seek a ruling. Court held that the body which was capable of giving final decisions must be allowed to seek a ruling. In Nordsee the ruling was sought by an arbitrator in a dispute between three German firms. Held that although the arbitrator could make decisions it would not qualify-by the agreement the parties had agreed to submit disputes to arbitration but there was no obligation to do so.Secondly the German authorities were not involved in the arbitration proceedings. Held there was a not a sufficiently close link between these proceedings and the organisation of legal remedies through the courts.In case 125/95 Procura Della Republica the referral from an Italian prosecutor was not accepted because he held both the function of public prosecutor and examining magistrate. Its lack of independence meant it was not regarded as a court.

13. Any Court or Tribunal of a Member State
Case 61/65 Vaassen
Established by law
must be judicial in nature (makes legally binding decisions)
inter partes procedure
have degree of permanence
be ‘recognised’ by the state (some form of statutory origin)
Criticism by Advocate General Colomer in Case 17/00 de Coster

14. ARTICLE 234
Paragraph (2) Courts which may seek a ruling - if the court considers that a decision on the question is necessary to enable it to give judgment
Paragraph (3) A court shall seek a ruling if the question is raised in a court “against whose decision there is no judicial remedy”

15. Discretionary referral
Article 234 (paragraph 2)
Entirely for the national court to decide whether it is necessary and also whether to refer
Case 166/73 Rheinmühlen - a national court cannot be deprived of its power to refer by rulings of superior courts
The Court has consistently held that it is solely for the national courts to decide in the light of the special features of the case before it.
Moreover a national court cannot be deprived of its right to seek a preliminary ruling because of the ruling of a superior national court in Rheinmulen the ECJ held that national courts have the widest possible discretion, although as we shall see the ECJ has sought to limit this in later cases.

16. Mandatory Referral
Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decision there is no judicial remedy under national law that court or tribunal shall bring the matter before the court.

17. Article 234 (3)-which courts?
Abstract theory
courts from which there is never a right of appeal
House of Lords
Conseil d’Etat (France)
Concrete theory
whether there is no right of appeal in the type of case in question

18. Article 234 (3)-which courts?
Abstract
Bulmer v Bollinger [1974]- “short of the House of Lords, no other English court is bound to refer a question...” per Lord Denning
Concrete
Case 6/64 Costa v ENEL -”national courts against whose decisions, as in the present case, there is no judicial remedy, must refer the matter to the Court of Justice” ECJ in relation to Italian magistrates’ court

19. Article 234 (3)-which courts?
Case C-99/00 Lyckeshog
ECJ returned to the reason why Art 234 (3) had been included- to prevent a body of national case law, not in accordance with Community law, from coming into existence
However ECJ held that courts are not final courts for these purposes where leave to appeal from their judgement is required
“the fact that examination of the merits of such appeals is subject to a prior declaration of admissibility by the supreme court does not have the effect of depriving the parties of a judicial remedy” Paragraph 16

20. ART 234(3)-Mandatory referral
Does this mean that a national court that falls within this paragraph MUST refer every question of Community law that it encounters?
Text of Art 234 (3) suggests that the answer is yes- “Where any such question … shall bring the matter before the court.”
The answer is in fact NO.
Courts falling within this paragraph are only obliged to seek a preliminary ruling (the ‘shall’ still operates) where the court considers the ruling is necessary.
Paragraph 2 “a ruling may be sought when the courts considers that a decision on the question is necessary”.
Paragraph 3 makes no reference to this.

21. Case 283/81 CILFIT Srl
Case before Italian Supreme Court (the Cassazione) ( a court falling within Art 234 (3))
Question in the proceedings had already been addressed by ECJ in earlier case
Was the Italian court still bound by Art 234 (3) to seek a ruling even where it had no doubt as to the meaning of the provision because the ECJ had already given a ruling?

22. When will it be necessary?
Case 283/81 CILFIT Srl
“it follows from the relationship between the second and third paragraphs of article 177 [now 234] that the courts or tribunals referred to in paragraph 3 have the same discretion as any other national court or tribunal to ascertain whether a decision on a question of Community law is necessary to enable them to give judgment”
all national courts and tribunals have the same discretion in deciding whether a question of Community law was necessary to enable them to give judgment
Only difference is that courts that fall into Art 234 (3) are obliged to seek a PR if they conclude that one is necessary, whereas lower courts are not obliged.

23. When will it be necessary?
ECJ addressed this in Cilfit by looking at when it will not be necessary
The first thing that has to be established is that there is a question of Community law

24. Where any such question is raised (CILFIT Srl)
There must be a question relating to the interpretation of Treaty or acts of the institutions
the fact that a party contends that the dispute gives rise to a question concerning the interpretation of Community law does not mean that the court (or tribunal) is compelled to consider that a question has been raised
a national court may, in appropriate cases, refer a matter of its own motion

25. CILFIT Criteria It will not be necessary to refer a question where
(a)the question raised was not relevant
(b) where the question is relevant then the national court should consider whether previous decisions of the Court have already dealt with the point of law in question
(c) where the correct application of Community law is so obvious so as to leave no scope for reasonable doubt- acte clair
This case concerned textile firms who alleged that certain Italian duties that they were required to pay were in breach of EC regulation 827/68. The case was before the Italian Court of Cassation (against whose decision there was no judicial remedy). The Italian health minister argued that there was no need to refer the matter on the grounds that the answer to the substantive question was so obvious a preliminary ruling was not necessary. The Italian Court of Casation decided that this issue was one which the ECJ should resolve-i.e. when will it be necessary to seek a ruling?
Asked whether the obligation to refer in Art 234 (3) was unconditional or whether it required that there was a reasonable interpretive doubt.
The ECJ used this occasion to give the following guidance:
1. A court may of its own motion submit questions.
2. It follows from the relationship between paragraphs 2 and 3 that courts referred to in para. 3 have the same discretion as any other national court to decide whether a question is necessary.
Accordingly those courts do not need to seek a ruling if the question is not relevant. "That is to say, if the answer to that question, regardless of what it may be can in no way affect the outcome of the case".
If however a court (covered by para 3) believes that a ruling is necessary then it is obliged to refer. However even then this obligation is limited. "Where previous decisions of the Court have already dealt with the point of law...irrespective of the nature of the proceedings...even though the questions at issue are not strictly identical.."a national court is not bound to refer [Note the difference between this and Da Costa on the use of precedent.]

26. The question must be relevant
Case 283/81 CILFIT Srl
national courts..are not obliged to refer …a question concerning the interpretation of Community law raised before them if that question is not relevant, that is to say, if the answer to that question, regardless of what it may be, can in no way affect the outcome of the case

27. Has there already been a previous ruling?
Cases 28-30/62 Da Costa v Nederlandse Belasting Administraitie
“ the authority of an interpretation under[Article 234] already given by the Court may deprive the obligation of its purpose and thus empty it of its substance…
such is the case especially when the question is materially identical with a question which has already been the subject of a preliminary ruling”
Case 283/81 Cilfit Srl
“where previous decisions of the Court have already dealt with the point of law in question, irrespective of the nature of the proceedings which led to those decisions, even though the questions at issue are not strictly identical”
the facts of the case were identical to Van gend en Loos and the questions were also materially identical.
Although the third paragraph unreservedly requires courts or tribunals against whose decision there is no judicial remedy to refer to the Court every question of interpretation raised before them the authority of a previous ruling under Art 234 may "deprive the obligation of its purpose and thus empty it of its substance". Especially when the question raised is materially identical .
This is because the ECJ is ruling on the interpretation of the Community provision (using the wording and the spirit as an aide to interpretation) "it being left to the national courts to apply in the particular case the rules that are thus interpreted”

28. Cilfit Criteri-Acte clair
(c) where the correct application of Community law is so obvious so as to leave no scope for reasonable doubt-
acte clair
doctrine from French administrative law
where a provision of law is so clear no question of interpretation arises
if a national court concludes that a point of Community law is acte clair then it is not necessary to seek a preliminary ruling

29. Acte Clair
“Finally, the correct application of Community law may be so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved. 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 to the courts of the other Member states and to the Court of Justice. Only if these conditions are satisfied may the national court or tribunal refrain from submitting their question to the Court of Justice and take upon itself the responsibility for resolving it”. Paragraph 16
In Royscott Leasing Ltd v Commissioners of Customs & Excise 1999 CMLR the Court of Appeal in England refused to withdraw the request for a preliminary ruling which it had made to the ECJ despite an intervening ruling by the ECJ in a case which related to the same directive. The Court of appeal recognised that it was competent to withdraw the ruling it said it should only do so if it was clear that the ruling was entirely without interest. Court of Appeal rejected arguments made by the Commissioners and held that the ECJ could itself ask the national court to withdraw the ruling if it thought it was necessary-the fact that the ECJ had not done so in the given case meant that the ECJ could not have considered the matter to be acte clair.
Is the matter equally obvious?
Different characteristic features of Community law
Different languages
Terminology
Different legal concepts
Purposive interpretation

30. Acte Clair
Community legislation drafted in different languages and the different language versions are equally authentic
Community law uses terminology peculiar to it
legal concepts have different meanings in Community law and the law of the Member States
every provision of Community law must be placed in its context and interpreted in the light of the provisions of Community law a whole
Must consider the characteristic features of Community law

31. CILFIT Criteria
Courts of last resort not obliged to seek a ruling where (see paragraph 21)
the question raised was not relevant
where the question is relevant then the national court must consider whether previous decisions of the Court have already dealt with the point of law in question
where the correct application of Community law is so obvious so as to leave no scope for reasonable doubt
This case concerned textile firms who alleged that certain Italian duties that they were required to pay were in breach of EC regulation 827/68. The case was before the Italian Court of Cassation (against whose decision there was no judicial remedy). The Italian health minister argued that there was no need to refer the matter on the grounds that the answer to the substantive question was so obvious a preliminary ruling was not necessary. The Italian Court of Casation decided that this issue was one which the ECJ should resolve-i.e. when will it be necessary to seek a ruling?
Asked whether the obligation to refer in Art 234 (3) was unconditional or whether it required that there was a reasonable interpretive doubt.The ECJ used this occasion to give the following guidance:
1. A court may of its own motion submit questions.
2. It follows from the relationship between paragraphs 2 and 3 that courts referred to in para. 3 have the same discretion as any other national court to decide whether a question is necessary.
Accordingly those courts do not need to seek a ruling if the question is not relevant. "That is to say, if the answer to that question, regardless of what it may be can in no way affect the outcome of the case".
If however a court (covered by para 3) believes that a ruling is necessary then it is obliged to refer. However even then this obligation is limited. "Where previous decisions of the Court have already dealt with the point of law...irrespective of the nature of the proceedings...even though the questions at issue are not strictly identical.."a national court is not bound to refer [Note the difference between this and Da Costa on the use of precedent.]

32. CILFIT criteria
Also apply to Courts not covered by paragraph 234 (2)-in short applies to all national courts and tribunals
ECJ also makes it clear that, not withstanding the Cilfit guidelines “ it must not be forgotten that in all such circumstances national courts and tribunals...remain entirely at liberty to bring a matter before the Court of Justice if the consider it appropriate to do so” Paragraph 15.

33. Validity Case 314/85 Foto Frost v Hauptzollamt Lübeck-Ost
“Divergences between courts in the member states as to the validity of Community acts would be liable to place in jeopardy the very unity of the Community legal order and detract from the fundamental requirement of legal certainty”.

34. When to refer At discretion of national court
Preferable if the facts have been decided and legal issues clarified
Case 36/80 Irish Creamery Milk Suppliers v Government of Ireland
national court must define factual and legal circumstances in which the question arises Case
C /90 Telemarsicabruzzo SpA
cannot be made after the principal issue has been decided-
Case 338/85 Pardini
The ECJ does not question the timing of the reference. However the Court has indicated in the Irish creameries case that the national court should define the legal context in which the ruling is sought and has therefore indicated that the national court should try to first dispense with the factual issues and matters relating purely to national law
In telemarsicabruzzom the Court of Justice refused to give a preliminary ruling to an Italian court because the Italian court had failed to provide any background factual information and very limited observations. (The ECJ has done this a number of cases since then).
ECJ cannot give a ruling when the the procedure before the national court has come to an end
Prudent to settle issues of national law

35. When to refer Enormous delay (18 months – 2years) Costs
Views of the parties (although ultimately for national court to decide) .

36. Refusals to give rulings
Case 104/79 Foglia v Novello (No. 1) ECJ will not give rulings in relation to hypothetical questions (ECJ decided the dispute was contrived and not a genuine dispute) – “arranged by the parties in order to induce the Court to give its views on certain problems of Community law which doe not correspond to an objective requirement inherent in the resolution of a dispute”

37. Refusals to give rulings
Case 244/80 Folglio v Novello (No. 2)
Refusal to give a ruling in relation to hypothetical questions
ECJ will not give advisory opinions
ECJ reserves the right to examine where necessary, (in order to confirm its own jurisdiction), the reasons given by the national court for seeking a ruling
Case C-83/91 Meilicke v ADV/ORGA
Question not relevant to the proceedings
Refusals to give rulings may be seen as an assault on the discretion of national courts to seek rulings. recall in Rheinmulen that the ECJ said that the national courts have the widest possible discretion-in that case the ECJ suggested it would not look at the national courts reasons. However in these cases the Court has refused to give rulings.
Already referred to the Telemarsicabruzzo case where the Court declined to give ruling when the referring court had failed to supply information about the factual background to the case.
Foglia v Novella., parties not really in dispute with one another. Contrived dispute to seek a ruling on the compatibility of national law with Community law.
In Case C83/91Meilicje v ADV/ORGA the \Court held that the German courts request for a ruling on a case involving company law directives were 'hypothetical in nature' and that the Court had not fully explained the legal and factual issues of the case. It appears that the dispute had been contrived by M in order to test a theory he had exposed in a book.

38. Refusals to give rulings
Where question not relevant
Case C-62/93 BP Supergas v Greece
Where national court failed to articulate the questions or failed to sufficiently define legal and factual context of the case
Cases C-320 &321/90 Telemarsicabruzzo v Circostel

39. Effect of a preliminary ruling
Binding on the national court in the case in which the ruling is sought
However see Arsenal v Reed [2002]
In the light of Article 10 EC Treaty which requires the state (including national courts) to ensure fulfilment of obligations arising out of the Treaty- hence national courts are under obligation to comply with earlier decisions of the ECJ

40. The Preliminary Rulings Procedure
“a stroke of genius”- Arnull
“ the jewel in the Crown” Craig & De Búrca
Supremacy
Direct effect
Indirect Effect
State Liability
The preliminary rulings procedure has been variously described by academic commentators as seminal in the development of Community law.
“ a stroke of genius”- Arnull[1]
“ the jewel in the Crown” Craig & De Búrca
Article 234 is clearly the principal mechanism by which the relationship between Community law and national law has developed. -
Supremacy
Direct Effect
Indirect effect
State liabilities
Rulings on national remedies
[1] The European Union and its Court of Justice, Anthony Arnull 1999, Oxford University Press

41. Problems with Preliminary rulings
Significant delays
Associated problems of costs and impact on national cases
Proposals for reform
The Future of the Judicial System of the European Union (Proposals and Reflections) (May 1999)
Due Report (Report by the Working Party on ‘The Future of the European Communities’ Court System’ (January 2000)

42. Article 225 (3) EC (Post Nice)
The CFI shall have jurisdiction to hear and determine questions referred for a preliminary ruling…in specific areas laid down by the Statute.
Where the CFI considers that the case requires a decision of principle likely to affect the unity or consistency of Community law, it may refer the case to the [ECJ] for a ruling.
Decisions given by the CFI on questions referred for a preliminary ruling may exceptionally be subject to review by the [ECJ], under the conditions and within the limits laid down by the Statute, where there is a serious risk of the unity or consistency of Community law being affected.

43. Conclusions
Preliminary rulings procedure designed to ensure uniform interpretation of Community law throughout European Union
Article 234 defines jurisdiction of ECJ and confers discretion on national courts to seek a ruling where they consider it necessary
Courts falling within paragraph 234 (3) are only required to seek a ruling (shall) where they also think it is necessary (Cilfit)
ECJ has given guidance to national courts as to when a preliminary ruling will not be necessary but national courts free to decide
However ECJ will, on occasions, refuse to give a ruling in certain circumstances
Proposals for reform