Preliminary Reference Procedure 2024/2025 PDF

Preliminary reference procedure EU LAW (Global Law) a. a. 2024/2025 PROF. AVV. LUCA CALZOLARI, PH.D, LL.M 0  Preliminary overview  Dialogue between the Court of Justice and national courts = the mechanism and procedur...

Preliminary reference procedure EU LAW (Global Law) a. a. 2024/2025 PROF. AVV. LUCA CALZOLARI, PH.D, LL.M 0  Preliminary overview  Dialogue between the Court of Justice and national courts = the mechanism and procedure of the preliminary reference is an essential element of the whole jurisdictional system of the EU as it ensure the cooperation between national courts and the EU court in the context of the decentralized application of EU law by national Courts  Purpose = given that national Courts are the main subjects that apply EU law (or those rules of domestic law that transpose EU law at the national level), the purpose of the preliminary reference is to ensure that such application is uniform in all Member States  Hybrid remedy = the preliminary reference procedure has similarities with both the action for annulment (validity referral) and the infringement proceedings (interpretation referral) 1  Preliminary overview (2)  Role of the Court of Justice = after all, under Article 19 TEU, the Court of Justice “assures respect for the law in the interpretation and application of the Treaties"  The reference for a preliminary ruling is the cornerstone of the multilevel (EU/Member States) jurisdictional system where the dialogue between national courts and the Court “aims to ensure the unity of interpretation of Union law, thus making it possible to guarantee the coherence, full effectiveness and autonomy of that law as well as, ultimately, the special character of the system established by the Treaties” (Achmea, C-284/16 § 37) 2  Jurisdiction of the CGEU  General jurisdiction = Article 267 TFEU provides the Court of Justice with general preliminary ruling jurisdiction, i.e., extended to all areas of Union law  Exceptions = the only exceptions to preliminary ruling jurisdiction concern the Court's inability to rule:  on acts adopted under the CFSP (Art. 275 TFEU) – but see Joined Cases C-29/22 P KS and KD v Council and Others and C-44/22 P |  on the validity or proportionality of operations conducted by the police or other law enforcement agencies of a Member State or the exercise of the responsibilities incumbent on Member States for the maintenance of law and order and the safeguarding of internal security (Art. 276 TFEU)  Division of jurisdiction within the CGEU =  until September 2024, the preliminary reference has always been an exclusive jurisdiction of the Court of Justice  both Article 256(3) TFEU and the Statute of the Court, however, provided for the possibility of partially (and with certain limitations) devolving this jurisdiction to the General Court.  Since October 2024, the GC has acquired competences 3in certain matters (see next slides)  Jurisdiction of the CGEU (2) Since October 2024, the Court of Justice shares its jurisdiction over references for a preliminary ruling with the General Court. References for a preliminary ruling which come exclusively within the following areas are transferred to the General Court:  the common system of value added tax;  excise duties;  the Customs Code;  the tariff classification of goods under the Combined Nomenclature;  compensation and assistance to passengers in the event of denied boarding or delay or cancellation of transport services;  the scheme for greenhouse gas emission allowance trading. 4 See https://curia.europa.eu/jcms/upload/docs/application/pdf/2024-10/cp240154en.pdf  Initiative and duty to refer a question (summary)  Procedural aspects = Article 267 TFEU gives all national Courts the power, and if they are last instance Courts, the obligation, to stay the proceedings pending before them and ask the Court of Justice for a ruling on the interpretation or validity of an EU rule if they consider such a ruling necessary to issue their decision.  Application by a party or of its own motion = practically speaking, a reference for a preliminary ruling is generally requested by one of the parties of the proceeding pending before the national court that believes it would benefit from the Court's intervention but can also be made by the national Court of its own motion 5  Incidental nature of the preliminary reference procedure  According to the ECJ, national courts have the power to make a reference to the Court for a preliminary ruling only if a dispute is pending before them.  In the case of a reference for a preliminary ruling, only the request for interpretation or the request for determination of validity is transmitted to the Court, without transfer of the proceedings.  Therefore, the case is still pending before the national court and continues to be pending before it. There is only a suspension of the proceeding before it pending until the Court has ruled on the question referred for a preliminary ruling (se for example Cases C-422-424/93, Zabala Erasun) 6  Incidental nature of the preliminary reference procedure (2)  It is therefore a remedy of an incidental nature:  the ruling of the ECJ does not define the substance of the dispute pending before the national Court  the ECJ only rules on the question (interpretative or validity) that the national court decided to submit to it  the question referred for a preliminary ruling is instrumental to the resolution of the main case, which nevertheless remains within the jurisdiction of the national court 7  The importance of the mechanism As a reminder of the importance of the preliminary reference procedure in the context of the development of the EU legal order, please remember that (inter alia) the following principles have been established by the ECJ through the instrument of the preliminary reference  Direct effect of EU law  Primacy of EU law over national law  Fundamental rights as part of general principles of EU law  Conforming interpretation of national law to EU law  Liability of member states for violation of EU law  Negative integration (principle of mutual trust and the “Dassonville formula”) 8  Categories and subject matter of the preliminary reference procedure Preliminary reference procedure of interpretation Question = The national Court asks the ECJ what is the correct interpretation and, therefore, the content of a given EU provision Subject matter = any provision of EU law can be the subject matter of an interpretation referral Preliminary reference procedure of validity Question = the national Court asks the ECJ whether or not a particular provision of EU secondary legislation is valid and effective Subject matter = any provision of secondary legislation (only and solely) 9  The subject matter of the preliminary reference procedure of interpretation  As mentioned, the subject matter of a preliminary reference for interpretation can be any disposition pertaining to any source of EU law  The notion shall be broadly interpreted as meaning inter alia:  Treaties (and protocols etc.)  General principles of EU law  CDFUE  International agreements to which the EU is a party and domestic acts deriving therefrom (e.g., formerly Case 181/73, Haegerman)  Secondary legislation, binding or non-binding (e.g., Recommendations - C-188/91, Deutsche Shell, § 18)  Rules with or without direct effect (the latter also because of their indirect effects e.g., C-472/93, Spano)  A previous judgment of the Court of Justice 10  The subject matter of the preliminary reference procedure of validity  Conversely, the subject of a referral of validity can be represented (only and solely) by acts adopted by an EU institution, the legitimacy of which must be assessed in the light of EU primary law (the Treaty and any other source having the same legal force)  International law (if binding on the EU and having direct effect) may also be used as a yardstick for the validity of a rule of EU law in the context of a validity reference (e.g., Case 21-24/72, International Fruit"  In addition to primary law, also (and obviously) excluded from the possibility of being subject to a reference of validity are jurisdictional measures, namely, acts enacted by the Court of Justice, the General Court (and previously the Civil Service Tribunal) 11  The purpose of the preliminary reference procedure of interpretation (and its relation with the infringement procedure)  The main function of the referral for interpretation is, of course, to ensure that the correct and uniform interpretation and, by extension, application of EU law in all Member States can be achieved  The reference for a preliminary ruling is essential to safeguard the Community nature of the legal order established by the Treaty and is intended to ensure that in every case Eu dispositions have the same effect in all the States of the Community.  Article 267 TFEU aims first and foremost to avoid divergences in the interpretation of the Community law to be applied by national courts, but also to ensure such application by providing the national court with the means of surmounting difficulties which may arise from the imperative of giving Community law full effect within the legal systems of the Member States (Case 166/73 Rheinmühlen) 12  The purpose of the preliminary reference procedure of interpretation (and its relation with the infringement procedure)  However, in practice, the interpretation referral has also come to serve a different purpose, enabling the ECJ to scrutinize, indirectly, the compatibility of domestic law with the rule of EU law whose interpretation the court is being asked to provide  This is due to the fact that, with the decision rendered in the context of a referral for interpretation, the ECJ provides the national Court with the tools necessary to verify the legality of a rule of national law (or an administrative act or practice) in the light of EU law (“does the EU rule preclude or not preclude a national rule that …”)  Although it is not for the Court, in the context of Article 267 TFEU] to rule on the compatibility of a national rule with EU law, the ECJ is nevertheless competent to provide the national court with all the elements of interpretation of EU law which may enable it to assess that compatibility for the purpose of the resolution13 of the case before it (see, Case C-373/89, Integrity; Case C-369/89, Piageme).  The purpose of the preliminary reference procedure of validity (and its relation with the annulment procedure)  The reference for validity is similar to the action for annulment = same acts and same grounds of appeal under Article 263 TFEU and under the referral of validity  In a very recent case, however, the Court admitted the possibility of a referral of validity concerning a non-binding EU act, i.e. the guidelines issued by the European Banking Authority (EBA) on product oversight and governance arrangements for retail banking products (case C-911/19, Fédération bancaire française (FBF) contro Autorité de contrôle prudentiel et de résolution (ACPR)  And indeed, the referral of validity is intended to make possible a review of the legitimacy of EU law even beyond the cases (and limits) of an action for annulment, thus ensuring the completeness and effectiveness of the system of jurisdictional remedies provided by the EU legal order, especially to individuals 14 (see limited locus standi of individuals under Article 263 TFEU)  The purpose of the preliminary reference procedure of validity (and its relation with the annulment procedure)  However, the ECJ considers that an individual cannot ask a national court to submit a preliminary reference question of validity if he/she was a person who was “without any doubt” entitled to challenge the act under article 267 TFEU, as in this case after the elapsing of the term to appeal the act directly the act (a decision) has become final against him (CJ, March 8, 2007, Case C-441/05, Roquettes Frères, para. 40).  On the other hand, the Court seems to admit the preliminary reference of invalidity ex motu propriu by the national court: The question concerning the validity of Decision 2003/146 was not raised at the request of a person who, although he could have brought an action for annulment against it, did not do so within the time limits laid down in Article 230 EC. It was brought ex officio by the court in the main case. Consequently, it cannot be declared inadmissible on the basis of the case law stemming from the aforementioned judgment in TWD Textilwerke Deggendorf" (Case C-222/04, Ministero dell'economia e delle Finanze v. Cassa di Risparmio di Firenze, 15 paragraphs 72-74).  Who is a “national court” for the purposes of Article 267 TFEU?  Under Article 267 TFEU, a reference to the Court of Justice for a preliminary ruling may be made by “any court or tribunal of a Member State”  autonomous notion of EU law = the assessment of whether a body making a reference is a “court or tribunal” within the meaning of Article 267 TFEU “is a question governed by EU law alone” (e.g., C- 203/14, Consorci Sanitari del Maresme § 17) unrelated to domestic law notions.  Otherwise, there would be 27 different notions of “court or tribunal”. 16  Who is a “national court” for the purposes of Article 267 TFEU? (2)  In order to identify an autonomous notion of "court," the case law of the Court of Justice has over the years identified some basic requirements. A body in order to be a "court" within the meaning of Article 267 TFEU must:  have legal and public origin (and not conventional/private) = no arbitration  be stable  issue mandatory and binding decisions (no ADR)  have the power/duty to make decisions based on rules of law;  be independent from third parties (e.g., from government)  be impartial form the parties 17  Who is a “national court” for the purposes of Article 267 TFEU? (3)  Thus, there is not necessarily coincidence between the notion of “court or tribunal” established by the ECJ and the notion of “court or tribunal” applicable in the relevant Member State  On the one hand, there may be instances in which the ECJ qualifies as a “court or tribunal” a body that, under national law, is not qualified as such  “the Scheidsgerecht is a permanent body charged with the settlement of the disputes defined in general terms in article 89 of the rbfm, and it is bound by rules of adversary procedure similar to those used by the ordinary courts of law. finally, the persons referred to in the rbfm are compulsorily members of the beambtenfonds by virtue of a regulation laid down by the mijnindustrieraad ( council of the mining industry ), a body established under public law. they are bound to take any disputes between themselves and their insurer to the scheidsgerecht as the proper judicial body. the scheidsgerecht is bound to apply rules of law” (Vaassen-Göbbels, Case 61/65, judgment June 30, 1966)  On the other hand, and more frequently, the Court has held that bodies which were instead unquestionably qualified as courts under national law were not courts for the purposes of Article 267 TFEU  “The Court must consider whether the Directeur des Contributions constitutes a “court or tribunal” […] and whether, in consequence his reference is admissible. […] the expression “court or tribunal” is a concept of Community law, which, by its very nature, can only mean an authority acting as a third party in relation to the authority which adopted the decision forming the subject-matter of the proceedings. In this instance, the Directeur des Contributions does not act as such a third party. Being at the head of the Direction des Contributions Directes et des Accises (Direct Taxes and Excise Duties Directorate), he has a clear organizational link with the departments which made the disputed tax assessment, against which the complaint submitted to him is directed. This is confirmed, moreover, by the fact that, if the matter were to come before the Conseil d' État on appeal, the Directeur des Contributions would be a party to the proceedings” (Corbiau, Case C-24/92, judgment March 30, 1993, paragraphs 14-16). 18 Who is a “national court” for the purposes of Article 267 TFEU? (3) - National Bar Council (Joined Cases C-58 and - Arbitrators, because they have no legal 59/13, Torresi) origin (Case 102/81, Nordsee; Achmea) - President of the Tribunal (Ligur Carni, cases - NCA, because they are not independent C-277, 318, 319/91)) (Case C-53/03, Syfait) - Benelux court on the uniform law on - Prosecutors, because they are not third trademarks. parties (Cases C-74/95 and 129/95, Procura di - Court of Appeals in case of challenge to Torino v. X) refusal of homologation (Case C-55/96, Job - Italian courts in voluntary jurisdiction, Centre II) because they do not decide a case (Case C- - Court of Auditors, but not in advisory 111/94, Job Centre) capacity (case C-440/98, RAI) - Council of State also in an advisory capacity (cases C-69-79/96, Garofalo) - Constitutional Court (also in incidental 19 judgments since Order No. 207, July 3, 2013.  Admissibility of the question referred by a national Court  Formulation of the question = It is for the national court to assess whether or not it is necessary to refer a question to the Court of Justice for a preliminary ruling  “the national court, which is alone in having a direct knowledge of the facts of the case and of the arguments put forward by the parties, and which will have to give judgment in the case, is in the best position to appreciate, with full knowledge of the matter before, the relevance of the questions of law raised by the dispute before it and the necessity for a preliminary ruling so as to enable it to give judgment” (Case 83/78, Pigs Marketing Board)  The role of the parties is limited in that they cannot directly intervene in the decision whether to make the reference or not, nor in the tenor of its wording.  Instead, the parties participate in the proceedings before the Court of Justice, being able to make written and oral submissions  Reinterpretation and (possible) extension of the question = The ECJ may “reinterpret” the proposed question in light of the rules of EU law that it considers relevant  It is for the ECJ alone, “where questions may be formulated inappropriately or go beyond the ambit of its powers under Article 234 EC, to extract from all the information provided by the national court, and in particular from the grounds of the order for reference, the elements of Community law requiring interpretation – or, as the case may be, an assessment of validity – having regard to the subject-matter of the dispute” (Case C-346/05, ONEM § 19)  the ECJ has the task of interpreting all community law dispositions which may be useful to the national court for the purpose of resolving the dispute before it, even where those dispositions are not expressly stated in the question referred for a preliminary ruling" (Case C-42/96, PIL). 20  Admissibility of the question referred by a national Court (2)  Taking into account that Article 267 TFEU is based on cooperation and a clear division of functions between the national courts and the ECJ, the ECJ is not allowed to censure the reasoning of the 'order for reference and the relevance of its questions (Case C-297/89, Ryborg)  Nor can the ECJ review the jurisdiction of the national Court to hear the case in the context of which the questions for a preliminary ruling are raised, or on the regularity of the case itself and, in particular, of the order for reference: these are matters that are governed by the domestic law of the national court and must therefore be resolved by the latter.  There are, however, significant exceptions to the admissibility of preliminary questions:  case not governed by Union law (Case 298/84, Iorio)  absence or lack of reasoning on the part of the national court, as providing the correct of interpretation of EU which is useful to the national court requires that the latter has defined the factual and legal framework within which the questions raised are placed and that it explain at least the factual background on which those questions are based (see Case C-320/90, Telemarsicabruzzo)  fictitious disputes (Case 104/79, Foglia v. Novello:, where the parties sought to obtain the declaration of incompatibility with EU law of the French tax regime for liqueur wines through the expedient of a proceeding before an Italian court between two private parties which, however, agreed on the result to be achieved, who have inserted a certain clause in their contract just to induce the Italian court to rule on the point)  Relevance of the issue, i.e., no academic and/or hypothetical 21 questions whose resolution is not necessary for the decision of the case or otherwise not sufficiently related to the subject matter of the case (Case C-408/95, Eurotunnel) The national court “may” or “shall” refer … Obligation vs power  NB: the question of obligation/power to refer a question to the ECJ does not concern the importance of the matter, let alone whether fundamental rights or other particular categories of sources are involved  The question should be examined only and solely in light of the role of the judge a quo in the national system and, in particular, whether it is a judge whose decisions can or cannot be appealed. 22  Overview of the issue  The referral is just an option for lower courts (so-called provincial courts) = national courts against whose decisions an appeal may be brought have the power to request a preliminary ruling from the Court of Justice, but are not obliged to do so  The referral is mandatory for national courts of last instance = courts of last instance, on the other hand, are obliged to refer the matter to the ECJ  The notion of court of last instance depends on the concrete possibility of bringing an appeal against the court's decisions and not only on its rank in the national judicial system;  only ordinary remedies are to be taken into account in determining whether there is 23 a possibility of bringing a judicial remedy under domestic law.  Why so?  First reason = the case law of higher courts tends to have a greater impact on the domestic legal order, also in the light of the authority of higher courts over lower courts, leading to a greater risk to the uniform application of Union law (systematic perspective)  Second reason = if a last instance court makes an error in interpreting EU law (or solve the case applying an invalid piece of EU law), the ruling biased by that error results in a definitive and final harm to the position of the individual, since after a final judgment is issued there are no more remedies (individual protection perspective) 24  Exceptions: there are cases in which last instance courts may refer a question to the ECJ …  In interpreting the scope of the referral obligation incumbent on last instance courts, the ECJ has introduced some elements of flexibility in the system, so that the distinction between last instance courts and lower courts is a little more less marked than how it would seem by the text of Article 267 TFEU  In the famous Cilfit judgment (Case 283/81), the ECJ identified a number of cases in which, even if there are relevant questions, the referral may be omitted by the Courts of last instance, thus becoming an option  Without prejudice to the possibility for the national court of last instance to refer the question again, it is not obliged to make the reference when:  the question is materially identical to another already proposed and resolved in the past by the Court  the answer emerges from settled case law of the Court which, regardless of the nature of the proceedings in which it was produced, resolves the point of law in dispute, even in the absence of strict identity between the matters in dispute (theory of the “clarified act”)  when there is no reasonable doubt of interpretation (theory of the "clear act"): 25  The «acte clair» theory and the Cilfit’s criteria  The only way to correctly interpret and apply EU law shall be so evident that there shall be no reasonable doubt as to the answer to be given to the question raised.  Before reaching such a conclusion, the national court must be convinced that all the courts of al the Member States and the Court of Justice would reach the same conclusion.  Only if such conditions are met, a national court of last instance can refrain from referring the question to the court and resolve the case autonomously.  Whether or not the above conditions are met, is a question that shall be assessed in accordance with the nature of EU law and the peculiar difficulties that its interpretation presents.  First of all, it should be considered that Community norms are drafted in different languages and that the various language versions are authentic to the same extent: the interpretation of a EU disposition, therefore, involves the comparison of these versions.  it must then be observed, even in the case of full concordance of the language versions, that Community law employs terminology that is peculiar to it.  It should be emphasized that legal concepts do not necessarily have the same content in Community law and in the various national laws  Finally, each provision of Community law must be placed26in its proper context and interpreted in light of the totality of the provisions of that law, its purposes, and its stage of development at the time when the provision in question is to be  «Acte clair» and the Consorzio Italian Managment case “For a number of years, the duty to refer a question for a preliminary ruling pursuant to the third paragraph of Article 267 TFEU, the exceptions to that duty, and above all its enforcement, have been the metaphorical sleeping dogs of EU law. We are all aware that they are there. We are all able to discuss or even write scholarly treatises about them. However, in real life, it is best that they be left undisturbed. Pragmatically (or cynically) speaking, the entire system of preliminary rulings functions because no one in fact applies CILFIT, certainly not to its letter. Often, the idea of a dog is better than having to deal with the living animal»  Opinion of AG General Bobek, April 15, 2021, Case C-561/19 Consorzio Italian Managment  The Court of Justice then, in essence, confirms the applicability of the CILFIT criteria, providing some (minimal) clarifications, as we shall see 27  Failure to comply with the obligation to refer a question  This is a violation of Union law that can give rise to several consequences given that the obligation to make the referral for the courts of last instance is (at least in theory) "protected" by multiple remedies, internal and external to the Union legal system  Remedy 1 - public perspective = initiation of infringement proceedings against the member state for violation of Article 267(3) TFEU (and probably Article 47 CDFUE)  Remedy 2 - private perspective = initiation of an action for compensation for the resulting damage brought by individuals harmed by this violation before national courts.  Remedy 3 - ECHR = failure to refer, being mandatory, constitutes a violation of the fundamental rights to a fair trial and to a court pre-established by law enshrined in Article 6 ECHR (see cases Dhabi v. Italy and Wind v. Italy)  Remedy 4 - appealability before another domestic court (e.g., Cassazione) = the Cassazione recently asked the Court of Justice whether Article 47 CDFUE requires that judgments of the Council of State that do not make a preliminary reference must be appealable to the Court of Cassation, but the Court of Justice noted that this is an internal matter and cannot be resolved by EU law (as long as the principles of effectiveness and equivalence are respected) - see Case C-497/2020, Randstad  Subsequent case law of the Supreme Court denies this possibility (Cass. Civ. sez. un. Oct. 30, 2020 No. 24107). 28  … and there are case in which lower courts are obliged to submit a reference question (of validity)  A second exception concerns the fact that all courts, even those not of last instance, are obliged to refer the relevant question of validity to the Court for a preliminary ruling when they believe the act is invalid, i.e. practically speaking when they consider the grounds of invalidity raised by one of the parties with respect to an act of secondary law to be well-founded  This is a consequence of the Court of Justice's monopoly with regard to the declaration of invalidity of secondary legislation  the Court of Justice is the only court with jurisdiction to declare the invalidity of secondary legislation, whereas national courts cannot independently establish the invalidity of an act of the institutions, let alone disapply it (Photo-Frost judgment of October 22, 1987, Case 314/85) 29  … and there are case in which lower courts are obliged to submit a reference question (of validity) (2)  NB: This is not equal to say that lower courts are always obliged when it comes to the referrals of validity!  Indeed, if it considers the question of validity unfounded, the lower court remains free not to make the reference, because an act of secondary legislation is valid until the Court (eventually) declares it invalid/annullable  The option becomes an obligation only if the court considers the act invalid, because in this case the only way for the court to resolve the case without applying the act is to make the preliminary reference  Difference with interpretation referral = all courts (and others) have jurisdiction to interpret Union law, whereas only the Court of Justice can declare it invalid 30  Effects of preliminary rulings – referral of interpretation  Formally speaking, The interpretative judgment of the Court of Justice is binding only the court a quo  However, given its character as a judgment typically on a point "of law," other judges who are confronted with the same rule already subject to "authoritative" interpretation by the Court of Justice will be required to follow the approach given by the Court itself.  It should be pointed out that the Court is not bound by its own previous decisions, so that the possibility of a new reference for a preliminary ruling on a question already decided by the Court remains conceivable. 31  Effects of preliminary rulings – referral of validity  Judgment upholding validity = when the validity of the act in question is confirmed, the judgment has effects limited to the particular case brought to the Court's attention (e.g. “from the assessment of the questions submitted to the Court no factor capable of affecting the validity of the act have emerged”);  Judgment establishing the invalidity of the act = when, on the other hand, the Court establishes the invalidity of the act, the effect of the ruling is not unlike that of an annulment judgment rendered under Article 263 TFEU (formal and substantive res judicata), and the institution that had adopted the contested act has no choice but to adopt another one taking into account the 32Court's indications.  Effects of preliminary rulings – temporal effect  In principle, preliminary rulings of the Court of Justice take effect ex tunc (and this is obvious, since these are rulings that identify the correct interpretation of an EU norm or assess the validity of an act);  However, there are exceptions, namely, cases in which the Court of Justice, on the basis of the requirements of legal certainty, has decided to use of the power to limit the effects in time of a declaratory ruling of invalidity (resorting by analogy to the provisions of Article 264.2 TFEU, on the subject of actions for annulment):  By way of exception, the Court has sometimes (in exceptional and limited cases) also given ex nunc effect to interpretative judgments 33