← The hardest concepts in European Union law
In one breath
A national court may, and a court of last instance generally must, ask the Court of Justice to rule on the interpretation of Union law or the validity of a Union act when that is necessary to decide the case before it. The Court of Justice answers the question of Union law, and the national court then applies the answer and decides the dispute.
The picture
The family doctor and the specialist’s opinion
A family doctor treats a patient and meets a question outside her field: what does this unusual scan result mean? She sends the scan to a specialist, who answers the medical question in general terms and does not meet the patient. The doctor takes the answer, applies it to her patient and decides the treatment. The patient is still hers; the specialist has only given the reading of the scan.
The preliminary reference works the same way. The national judge keeps the case and decides the dispute. She puts a question about the meaning of Union law to the Court of Justice in Luxembourg, which gives a ruling on that point. The national court then applies the ruling to the facts. A doctor may skip the specialist when the answer is obvious or when she has seen the same question answered before, and national courts of last instance have similar exceptions.
Where the picture stops working
A doctor can send any scan she likes, whereas a court may refer only a question of Union law that it needs answered to decide the case. The Court declines hypothetical questions. The picture also hides a duty: a court against whose decisions there is no judicial remedy under national law is in general bound to refer, and failing to do so may expose the State to liability.
How it really works
- 1Know where the rule comes from. The procedure is in Article 267 of the Treaty on the Functioning of the European Union. Its limits were developed by the Court’s case law.
- 2Decide whether a question of Union law arises: the interpretation of the Treaties, or the validity or interpretation of acts of the institutions.
- 3Apply the discretion. Any national court or tribunal may refer a question if it considers that a decision on it is necessary to enable it to give judgment.
- 4Apply the duty. A court against whose decisions there is no judicial remedy under national law must refer, unless an exception applies. The usual exceptions are that the question is irrelevant, that the Court has already ruled on the point (acte éclairé), or that the correct application of Union law is so obvious as to leave no scope for reasonable doubt (acte clair).
- 5Observe the division of roles. The Court of Justice interprets Union law or rules on validity, and the national court applies the ruling to the facts. Only the Court of Justice may declare a Union act invalid (Foto-Frost).
Why people get it wrong
- Thinking the Court of Justice decides the national case. It answers the question of Union law, and the national court decides.
- Treating the duty to refer as absolute. The exceptions are real, though the acte clair test is demanding: the court must be convinced the matter is equally obvious to courts of other Member States and the Court of Justice.
- Assuming that lower courts must refer. They have a discretion, though a court doubting a Union act’s validity must refer.
- Believing that a national court can declare a Union act invalid. That power is reserved to the Court of Justice.
A worked example
The facts are invented
A national tribunal is hearing a dispute between a driver, Elif, and a transport authority. The outcome depends on whether a Union directive on working time covers self-employed drivers. The tribunal is an ordinary first-instance body, with an appeal available. It has a discretion, and it decides to refer because the point is unclear and decisive.
It sends the Court of Justice a question about the directive’s scope, with a summary of the facts and the national law. The Court answers in general terms, saying whether drivers in a certain position fall within the directive. The tribunal then applies the answer to Elif’s facts and decides. Suppose a higher national court later hears the case on appeal. If it is a court of last instance and the Court of Justice has already answered the point, it need not refer again.
Try it
In a national case a question of Union law arises that the Court of Justice has already answered in a materially identical case. The national court is a court of last instance. Must it refer again?
Landmark authorities
Read the sources themselves; this list is a starting point.
- Treaty on the Functioning of the European Union, Article 267, preliminary rulings
- Da Costa en Schaake v Nederlandse Belastingadministratie, Joined Cases 28/62 to 30/62, 1963
- CILFIT v Ministry of Health, Case 283/81, 1982
- Foto-Frost v Hauptzollamt Lübeck-Ost, Case 314/85, 1987
Where to go next
More hard concepts in European Union law
- Infringement proceedings (Union courts and procedure)
- Annulment actions and standing (Union courts and procedure)
- State liability for breach of Union law (Union law in national courts)
This page is an educational overview. It is not legal advice and not a substitute for the sources: the statute, the rule, the case itself. EU law is made by the Union’s institutions under powers that the Member States have conferred on it in the Treaties, and it is applied by national courts and the Court of Justice together. The national law of each Member State still governs most of private and criminal law. Each page says whether the idea comes from the Treaties, from regulations and directives, or from the Court of Justice’s case law. Each page states the usual formulation of the rule and names landmark decisions; check the primary sources, and the law of your own Member State, before relying on any rule.