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Preliminary Rulings

Another type of proceeding relates to preliminary rulings that the Court of Justice issues on the initiative of the courts in the Member States. This can apply to interpretation of the Treaties themselves or to the validity or the correct interpretation of legal acts adopted under the Treaties.

When such a question is raised before a national court, that court may, if it considers a decision from the Court of Justice necessary for its own adjudication, ask the Court for a preliminary ruling. If 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 national law, that court shall bring the matter before the Court of Justice (Art 267 TFEUU7 One purpose of this obligation is to avoid a domestic case law in any Member State that does not comply with EU rules. The Court of Justice has set strict requirements for when EU law is deemed to be so obvious that a national court against whose decisions there is no judicial remedy can decline to seek a preliminary ruling.58 It is, however, in practice the national court itself that assesses whether it needs a decision from the Court of Justice, and an obligation to turn there thus exists. Failure to seek a ruling, when it is mandatory, is an infringement of the Treaties and may be the basis for an infringement proceeding initiated by the Commission. Since national courts have no jurisdiction to declare a Community act invalid, they are in practice forced to turn to the Court of Justice if such examination becomes necessary in cases pending before them.

It is the national court that has a right, and sometimes an obligation, to seek a preliminary ruling. The parties to a case do not have this possibility and the national court is not obliged to seek a preliminary ruling or ask a specific question from the Court of Justice at a party’s request.

The possibility of requesting preliminary rulings is not limited to courts in the narrow sense. EU case law shows that other bodies exercising a governmental judicial function are also covered in many cases.59 The possibility to request a [1] [2]

preliminary ruling is extensive also as regards the scope of the problems. The Court of Justice is in principle obliged to give a ruling as long as the questions asked concern the interpretation of EU law. The Court can, however, reject a request from a national court if, among other things, the questions are hypothetical or the Court lacks the factual or legal material necessary to give a useful answer.60

The Court of Justice cannot in the context of a preliminary ruling procedure repeal a piece of EU legislation but may declare the law invalid, which has a very similar effect.61 Even if this is not stated in the Treaties, a preliminary ruling is binding on the national court that has requested it for the interpretation of the EU rules in question. Further, if the Court of Justice rules that an EU legislative act is invalid, not only the court requesting the preliminary ruling, but every national court must consider the act invalids The Court of Justice’s interpretation in the context of a preliminary ruling also has a retroactive effect^3

The Court of Justice’s role in a preliminary ruling is to clarify how EU law should be interpreted, while it is for the national court to apply the interpretation of EU rules to the individual case. In practice, however, the Court has not hesitated to formulate its decisions in a way that involves a fairly clear position, for example regarding a particular national rule’s compatibility with EU law.64

The Court has ruled that a national court’s request for a preliminary ruling on the validity of a Community act, in the same way as action for annulment of a legal act, constitutes a means of reviewing the legality of acts adopted by the EU institutions. In the context of an action for annulment, the applicant is permitted to request the suspension of the contested act, and the Court has power to grant the request. According to the Court of Justice, it follows from the requirement of coherence of the system of interim legal protection that national courts should also be able to order suspension of enforcement of a national administrative measure based on a Community regulation, the legality of which is contested.65 However, this suspension may be granted only under the conditions that apply to decisions of the Court of Justice for interim measures. This involves, inter alia, an assessment of whether enforcement of the contested measure would cause such irreversible damage to the applicant as might not be made good should the EU act be annulled.66 National administrative authorities, unlike courts, are not entitled to adopt interim measures even on the terms the Court has laid down.67 must apply the rule of law and be independent. See, eg, Case C-53/03 Synetairismos Farmakopoion Aitolias and Others ECLI:EU:C:2005:333, para 29; Case C-393/92 Municipality of Almelo and Others ECLI:EU:C:1994:171, para 21.

  • 60 Case C-344/04 International Air Transport Association and others ECLI:EU:C:2006:10, para 24.
  • 61 Wenneras The Enforcement of EC Environmental Law (n 26) 202.
  • 62 Case 66/80 International Chemical Corporation ECLI:EU:C:1981:102.
  • 63 Wenneras The Enforcement of EC Environmental Law (n 26) 182. 64 Ibid 181.
  • 65 Joined cases C-143/88 and C-92/89 Zuckerfabrik SUderdithmarschen ECLI:EU:C: 1991:65, para 18.
  • 66 Ibid, paras 27—9.
  • 67 Joined cases C-453/03, C-11/04, C-12/04, and C-194/04 ABNA Ltd and Others ECLI: EU:C:2005:741, para 108.

About half of all cases initiated before the Court of Justice are preliminary rulings, and this type of case has often led the Court to make fundamentally important statements.

  • [1] The Court of Justice has found that a requirement of a declaration of admissibility by a highercourt for a case to be reviewed by the higher court does not mean that there is no legal remedy againstthe lower court’s ruling. Case C-99/00 Lyckeskog ECLI:EU:C:2002:329, para 17.
  • [2] Such a court or tribunal is obliged, where a question of EU law is raised before it, to bring thematter before the Court of Justice, unless it has established that the question raised is irrelevant orthat the provision of EU law concerned has already been interpreted by the Court or that the correct application of EU law is so obvious as to leave no scope for any reasonable doubt. Case 283/81CILFIT ECLI:EU:C:1982:335, paras 13—16 and 21; Case C-160/14 Ferreira da Silva e Brito andOthers ECLI:EU:C:2015:565, para 38 and the case law cited there. 59 The Court of Justice has declared several criteria for defining the concept of a court or tribunal in EU law. Accordingly, the concept implies that such a forum must be established by law,have a permanent existence, and exercise binding jurisdiction. Its procedures must be inter partes,
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