The preliminary reference procedure is a tool of dialogue between the Court of Justice of the European Union (CJEU) and national courts in EU Member States. They result in a ruling by the CJEU on matters of interpretation of EU law to be applied in national court proceedings, where necessary.
The preliminary reference procedure ensures conformity of EU law throughout the EU, as well as maintaining institutional conformity of acts with EU law. The ruling is binding on the national court that submits the reference. The CJEU alone has jurisdiction over preliminary references.
Where does their jurisdiction come from?
Article 267 of the Treaty on the Functioning of the European Union (TFEU). The procedure covers all EU law with certain exceptions in relation to common foreign and security policy, and judicial and police cooperation in criminal matters.
When are preliminary references used?
Typically, it is the court of last instance that must make a preliminary reference. Although, any court may do so. A court of last instance is the highest judicial body in the legal system from which cases cannot be further appealed. The reference is highly encouraged to be made once the facts and legal questions are clearly defined.
Questions may be asked if necessary to solve the dispute or if they relate to earlier references with similar questions.
A reference must be made if there is ‘no judicial remedy’ in a court of last instance or if the court intends to consider an EU measure as illegal. There are two exceptions, which are known as the acte clair and acte éclairé doctrines:
- The acte clair doctrine is where the interpretation is so obvious as to leave no scope for any reasonable doubt as to how to answer the question
- The acte éclairé doctrine is where the CJEU has previously answered a materially identical question.
Time implications
There are currently, at the time of writing, 760 preliminary rulings pending before the CJEU. The average wait time for references in 2023 was 16.8 months, down from 17.3 in 2022. However, this is up from lows of 15.9 in 2021.
Trends in usage
Throughout the EU the number of references has been going down for the last five years, steadily decreasing from 641 referrals in 2019 to 518 in 2023. Specifically, in Ireland, the number of referrals has reduced significantly, down from 14 in 2022 to just 2 in 2023.
With referrals in double figures three of the last five years, this 2023 figure is significant. It signals a reduction in judicial willingness to make references. A decrease in referrals was also seen in Spain, Austria, and Belgium, meaning this sentiment is not confined to Ireland.
The country with the most referrals, Germany, has also decreased its number of references. A high of 140 were submitted in 2020 and have since reduced to 94 in 2023.
Matters referred have also changed. Cases relating to security and defence have made up the bulk of references given recent geopolitical trends. However, cases in areas such as tax, consumer protection, and competition remain a significant proportion of references.
The content of this article is provided for information purposes only and does not constitute legal or other advice.