Preliminary References Under Article 267 TFEU: Cooperation Between National Courts and the CJEU

Preliminary References Under Article 267 TFEU: Cooperation Between National Courts and the CJEU

1. Introduction

The preliminary reference procedure established by Article 267 of the Treaty on the Functioning of the European Union (TFEU) is one of the defining characteristics of the European Union’s legal order. It creates a direct relationship between national courts and the Court of Justice of the European Union (CJEU), enabling them to cooperate in interpreting and applying EU law.

The procedure addresses a fundamental difficulty inherent in a legal system operating across multiple national jurisdictions. EU legislation must have a consistent meaning throughout the Member States, even though disputes involving that legislation are usually heard by national courts applying their own procedural rules. Without a mechanism for obtaining authoritative interpretations, the same EU provision could acquire different meanings in different countries, weakening the uniformity and effectiveness of Union law.

Article 267 provides that national courts may, and in certain circumstances must, refer questions concerning the interpretation of the Treaties or the validity and interpretation of acts adopted by EU institutions, bodies, offices, or agencies.

The procedure does not transfer the underlying national dispute to Luxembourg. The national court remains responsible for determining the facts, applying national procedural law, and delivering judgment. The CJEU answers the questions of EU law necessary to resolve the dispute. The national court then applies that answer to the proceedings before it.

This relationship is often described as judicial cooperation or judicial dialogue. It is not a conventional appellate hierarchy. The CJEU does not ordinarily review national judgments, replace national courts, or decide the merits of the disputes referred to it. Its function is to provide authoritative guidance on EU law and, where appropriate, determine whether an EU act is valid.

The preliminary reference procedure has also developed considerably through the Court’s jurisprudence. Important judgments such as Van Gend en Loos, Da Costa, CILFIT, Foto-Frost, Cartesio, and Consorzio Italian Management have defined its scope, clarified the obligations of national courts, and established the conditions under which references are required.

A significant institutional reform took effect on 1 October 2024. Since then, certain preliminary references have been transferred from the Court of Justice to the General Court, which now has jurisdiction in six specified areas. The reform changes the internal allocation of judicial responsibility but preserves the fundamental mechanism established by Article 267.

Understanding the procedure requires examining its constitutional purpose, the courts entitled to make references, the distinction between discretionary and mandatory references, the admissibility requirements, the proceedings before the CJEU, and the legal consequences of preliminary rulings.

2. Legal Basis and Constitutional Purpose of Article 267 TFEU

2.1. The wording of Article 267

Article 267 TFEU establishes two principal categories of preliminary questions.

The first concerns the interpretation of the Treaties. National courts may request clarification of the meaning, scope, or legal consequences of provisions contained in the EU’s primary law.

The second concerns the validity and interpretation of acts adopted by EU institutions, bodies, offices, or agencies. This includes questions concerning regulations, directives, decisions, and other legally relevant EU measures.

The Treaty distinguishes between courts that have discretion to refer questions and courts whose decisions cannot be challenged through a judicial remedy under national law.

The second category is subject to a specific obligation. Where a necessary question of EU law arises before a court of last instance, that court must refer the question unless a recognised exception applies.

Article 267 therefore combines judicial discretion with a duty to refer in defined circumstances.

2.2. The relationship with Article 19 TEU

Article 19(3)(b) TEU confirms the constitutional importance of the preliminary ruling procedure by recognising the CJEU’s jurisdiction to give preliminary rulings at the request of national courts.

Article 19(1) TEU also requires Member States to provide remedies sufficient to ensure effective legal protection in the fields covered by EU law.

Together, these provisions establish a judicial system in which national courts and the CJEU share responsibility for the effective application of Union law.

National courts are not merely domestic bodies applying foreign or external rules. They are essential participants in the EU legal order because they enforce rights arising from EU law in ordinary civil, criminal, administrative, commercial, and constitutional proceedings.

The preliminary reference procedure connects this decentralised judicial activity with the interpretative authority of the CJEU.

2.3. The principle of judicial cooperation

The preliminary reference procedure is based on cooperation between courts rather than institutional subordination.

The national court decides whether a question of EU law is necessary to resolve the dispute. It determines the factual background, interprets national law, and ultimately decides the case.

The CJEU provides the authoritative answer concerning EU law. It does not ordinarily determine the facts or decide which party should succeed under national law.

This division of responsibilities was emphasised in Cartesio (Case C-210/06), where the Court confirmed that the national court has responsibility for deciding whether a reference is necessary and for determining the form and content of the questions submitted.

The procedure consequently protects two interests at the same time: the autonomy of national judicial proceedings and the uniformity of EU law.

3. Which National Bodies May Make a Preliminary Reference?

3.1. The meaning of a court or tribunal

Article 267 does not permit every public authority or administrative body to refer questions to the CJEU. The referring body must qualify as a court or tribunal of a Member State within the autonomous meaning of EU law.

The classification is not determined exclusively by the name given to the body under national legislation.

An institution called a tribunal in domestic law may not necessarily qualify for the purposes of Article 267. Conversely, a body that does not have the conventional title of a court may satisfy the EU criteria.

The CJEU examines the actual legal characteristics and functions of the body.

3.2. The criteria developed by the CJEU

In Dorsch Consult (Case C-54/96), the Court identified a series of factors relevant to determining whether a body qualifies as a court or tribunal.

These include:

• Whether the body is established by law.
• Whether it is permanent.
• Whether its jurisdiction is compulsory.
• Whether its procedure is inter partes, allowing opposing parties to present their arguments.
• Whether it applies rules of law.
• Whether it is independent.

These factors are assessed together. They are not a mechanical checklist in which every characteristic must necessarily appear in an identical form.

Independence is particularly important. The body must be capable of exercising its judicial functions without improper external influence and must be sufficiently impartial to resolve disputes according to law.

The CJEU has also examined whether the body exercises genuine judicial functions rather than merely performing administrative or advisory tasks.

3.3. Examples of bodies that may qualify

Ordinary civil and criminal courts, administrative courts, constitutional courts, and supreme courts may make preliminary references where the conditions of Article 267 are satisfied.

Certain specialised tribunals and professional disciplinary bodies may also qualify, depending on their legal characteristics and functions.

However, an administrative authority that merely issues decisions, conducts inspections, or advises a government department will not automatically qualify.

The distinction is important in regulatory systems where specialised administrative bodies have powers that resemble judicial functions but do not possess the independence or adjudicative characteristics required by Article 267.

The purpose of the criteria is to ensure that the preliminary ruling procedure remains a mechanism of judicial cooperation.

4. The Discretionary Right to Refer: Article 267(2)

4.1. The general rule

Article 267(2) provides that where a question concerning EU law is raised before a national court or tribunal, that court may request a preliminary ruling if it considers a decision on the question necessary to enable it to give judgment.

This is the general discretionary power to refer.

A national court does not have to refer every question involving EU legislation. It must determine whether clarification from the CJEU is necessary for resolving the dispute.

The court may make a reference on its own initiative or following a request from one of the parties.

The parties may identify an interpretative problem, submit proposed questions, and explain why a preliminary ruling is necessary. Nevertheless, the decision to refer remains that of the national court.

4.2. The national court controls the questions

In Cartesio, the CJEU confirmed that it is for the national court alone to determine the form and content of the questions referred.

The national court may consider suggestions from the parties, but it is not bound by their proposed wording.

This is important because the procedure is not an individual remedy that a litigant can activate automatically. It is a judicial mechanism through which the national court obtains the assistance it needs to decide a case.

The CJEU may, where appropriate, reformulate questions to provide a useful answer. However, it cannot transform the preliminary reference into a general advisory opinion unrelated to the dispute.

4.3. The national court decides when to refer

Article 267 does not prescribe one universal stage of national proceedings at which a reference must be made.

The national court determines when it is appropriate to refer, taking into account the circumstances of the case, the issues requiring clarification, and the procedural rules governing the national proceedings.

A reference may be made at an early stage where the relevant EU-law question is already clear and necessary. In other cases, the court may need to establish the facts or hear the parties before deciding whether a reference is justified.

However, the national proceedings must still be pending when the reference is made. The CJEU cannot provide a preliminary ruling in a case that has already been concluded.

4.4. Can a national court refuse a party’s request for a reference?

Yes.

A party cannot compel a national court to refer a question merely by invoking EU law.

The national court may conclude that the proposed question is irrelevant, that the applicable provision is sufficiently clear, or that the CJEU has already resolved the issue.

However, the court must respect the obligations applicable to courts of last instance and the requirements governing effective judicial protection.

Where a party raises a relevant EU-law question before a final-instance court, the court must examine whether the conditions for mandatory referral are satisfied.

The decision not to refer should be reasoned where the applicable procedural and EU-law requirements demand it.

5. The Mandatory Reference: Article 267(3)

5.1. Which courts must refer?

Article 267(3) provides that where a question falling within Article 267 is raised in proceedings before a court or tribunal against whose decisions there is no judicial remedy under national law, that court or tribunal must bring the matter before the CJEU.

The obligation is designed to prevent the development of divergent interpretations of EU law by courts whose decisions cannot be corrected through ordinary judicial review.

The expression court of last instance does not necessarily refer only to a country’s supreme court.

The relevant question is whether the decision of the particular court in the proceedings concerned is subject to a judicial remedy under national law.

A specialised appellate court may therefore qualify as a court of last instance in a particular category of proceedings, even though a supreme court exists elsewhere in the national judicial structure.

The assessment must be made by reference to the available judicial remedies in the specific case.

5.2. The obligation concerns necessary questions

The mandatory reference obligation does not require courts of last instance to refer every EU-law argument presented by a party.

The question must be relevant to the dispute and necessary to enable the court to deliver judgment.

In CILFIT (Case 283/81), the Court established that a court of last instance may refrain from referring where the question is irrelevant, where the CJEU has already interpreted the relevant EU provision, or where the correct interpretation is so clear that there is no reasonable doubt.

These exceptions are often described as the acte clair and acte éclairé doctrines, although the terminology is not itself a substitute for the detailed legal conditions.

5.3. The purpose of mandatory references

The obligation serves a constitutional function.

If courts of last instance could freely adopt their own interpretations of uncertain EU provisions without referring questions, different national legal systems might develop incompatible understandings of the same Union rule.

A preliminary ruling prevents this fragmentation by providing an authoritative interpretation that national courts must respect.

The obligation also reflects the special position of final-instance courts. Their judgments may establish the definitive national interpretation of a legal issue, making an incorrect interpretation of EU law particularly difficult to correct through ordinary domestic remedies.

6. The CILFIT Doctrine: When Is a Reference Not Required?

6.1. The original CILFIT judgment

In CILFIT v Ministry of Health (Case 283/81), the Court examined the circumstances in which a national court of last instance could decide an EU-law question without referring it.

The judgment recognised three principal situations:

1. The question is irrelevant to the resolution of the dispute.
2. The relevant EU-law provision has already been interpreted by the CJEU.
3. The correct interpretation is so obvious that no reasonable doubt remains.

The third situation is known as acte clair.

The Court emphasised that the clarity of EU legislation cannot be assessed as though it were a provision of ordinary domestic law.

EU law has particular characteristics, including its multilingual nature, autonomous terminology, and distinctive legal context. These features must be considered when deciding whether an interpretation is genuinely beyond reasonable doubt.

6.2. Acte éclairé: The provision has already been interpreted

The acte éclairé doctrine concerns situations in which the CJEU has already provided an authoritative interpretation of the relevant legal provision.

A further reference may be unnecessary where the legal issue has already been resolved by established case law.

The principle originated in Da Costa en Schaake (Joined Cases 28/62 to 30/62), in which the Court recognised that an interpretation previously given may remove the need for a new reference.

The fact that the CJEU has already interpreted a provision does not, however, prevent another national court from referring a question.

A court may still refer where it considers further clarification necessary, particularly where the factual or legal context differs or where uncertainty remains concerning the scope of the earlier ruling.

6.3. Acte clair: The correct interpretation is obvious

The acte clair exception requires more than a national judge’s personal confidence in an interpretation.

In CILFIT, the Court explained that national courts must consider the characteristics of EU law, including:

• The possibility of different interpretations across the authentic language versions.
• The autonomous meaning of EU legal terminology.
• The context and objectives of the relevant provision.
• The development of EU law.
• The risk that courts in different Member States may reach divergent conclusions.

The exception must therefore be applied with care.

A provision may appear clear in one language while another authentic version suggests a different meaning. Similarly, a familiar national legal expression may have a distinct meaning within EU law.

The purpose is not to make preliminary references automatic, but to prevent final-instance courts from treating difficult questions of EU law as self-evident without adequate consideration.

6.4. Clarification in Consorzio Italian Management

The Court revisited the CILFIT doctrine in Consorzio Italian Management and Catania Multiservizi (Case C-561/19).

The judgment reaffirmed the three recognised situations in which a final-instance court may refrain from referring a question.

It also emphasised that the assessment of reasonable doubt must take account of the particular characteristics of EU law and the risk of divergent judicial interpretations.

Importantly, the Court explained that a final-instance court must provide sufficient reasons where it relies on an exception to the obligation to refer.

The reasoning should make it possible to understand whether the court considers the question irrelevant, already resolved by the CJEU, or sufficiently clear.

The judgment also clarified that a court is not automatically relieved of its obligation merely because it has already made a preliminary reference in the same national proceedings. If a new and relevant interpretative difficulty arises, another reference may be necessary.

The decision is particularly important for national supreme courts and other final-instance tribunals because it connects the doctrine of acte clair with the obligation to provide reasoned judicial decisions.

7. The Two Categories of Preliminary Questions

Article 267 covers both questions of interpretation and questions of validity. Although they are brought through the same procedural mechanism, their legal functions are different.

7.1. Questions concerning interpretation

An interpretative reference asks the CJEU to clarify the meaning or scope of EU law.

For example, a national court may need to determine whether a provision of a directive applies to a particular category of employment relationship or whether a regulation imposes an obligation on a national authority.

The CJEU interprets the relevant EU provision, while the national court determines how that interpretation applies to the facts and national law.

Interpretative rulings are essential to the uniform application of EU legislation.

7.2. Questions concerning validity

A validity reference asks whether an EU act is legally valid.

The challenge may concern:

• The legal basis for adopting the act.
• Compliance with the Treaties.
• Respect for fundamental rights.
• Compliance with essential procedural requirements.
• The limits of the institution’s powers.
• Proportionality or other general principles of EU law.

The distinction between interpretation and validity is constitutionally significant.

A national court may interpret EU law and decide whether a validity argument is well founded. However, it cannot declare an EU act invalid.

7.3. The Foto-Frost principle

In Foto-Frost v Hauptzollamt Lübeck-Ost (Case 314/85), the Court established that national courts do not have jurisdiction to declare EU acts invalid.

The reasoning is connected to the need for uniformity in the EU legal order.

If national courts could independently invalidate EU measures, an act might be treated as valid in one Member State and invalid in another.

The CJEU therefore retains exclusive authority to determine the invalidity of EU acts through the preliminary ruling procedure and the other forms of judicial review available under the Treaties.

The distinction is important in practice:

• If a national court considers an EU act valid, it may reject the challenge.
• If it considers that the validity challenge may be well founded, it must refer the question to the CJEU.
• It cannot itself declare the EU act invalid.

The rule does not prevent national courts from granting appropriate interim protection in accordance with EU law, but such measures must satisfy the strict conditions developed in the Court’s case law.

8. Admissibility of Preliminary References

8.1. The existence of genuine national proceedings

A preliminary reference must arise in the context of proceedings before a national court or tribunal.

Article 267 is not a mechanism for obtaining abstract legal opinions or advisory statements about hypothetical situations.

The national proceedings must involve a genuine dispute or judicial matter, and the question must be relevant to the decision that the national court is required to deliver.

The CJEU has consistently held that it must be able to provide an answer that is useful to the referring court.

8.2. Presumption of relevance

Questions referred by national courts generally enjoy a presumption of relevance.

The national court is responsible for establishing the facts and legal context of the dispute. The CJEU does not normally substitute its own assessment for that of the referring court.

Nevertheless, the Court may refuse to answer where it is manifestly apparent that the requested interpretation has no connection with the facts or purpose of the main proceedings, where the problem is hypothetical, or where the Court lacks the factual or legal material necessary to provide a useful answer.

These principles are reflected in cases including Cartesio and Consorzio Italian Management.

8.3. Adequate explanation of the factual and legal context

A preliminary reference must provide sufficient information for the CJEU and interested participants to understand the dispute.

The national court should identify:

• The subject matter of the national proceedings.
• The relevant facts.
• The applicable national legislation.
• The EU provisions requiring interpretation or validity assessment.
• The relationship between the EU-law question and the outcome of the case.
• The reasons why a preliminary ruling is necessary.

A question that merely asks whether national law is compatible with EU law, without identifying the relevant legal framework or explaining the interpretative problem, may be insufficiently precise.

The CJEU may sometimes reformulate the questions, but the referring court remains responsible for supplying an adequate factual and legal foundation.

8.4. National procedural rules and admissibility

National procedural rules may govern the proceedings in which a preliminary reference is considered.

However, they cannot undermine the effectiveness of Article 267 or prevent national courts from exercising the powers conferred upon them by EU law.

In Melki and Abdeli (Joined Cases C-188/10 and C-189/10), the Court considered the relationship between a national constitutional review procedure and the preliminary reference mechanism.

It held that national procedural arrangements must not prevent national courts from referring questions to the CJEU at the stage they consider appropriate, or from giving full effect to EU law where necessary.

A Member State may organise its judicial system and constitutional procedures, but it cannot neutralise the cooperation mechanism established by Article 267.

9. The Procedure Before the CJEU

9.1. Submission of the reference

The preliminary reference begins with a decision of the national court.

The court formulates the questions and sends its request to the Registry of the CJEU in accordance with the applicable procedural requirements.

The request should contain a clear description of the dispute, the relevant facts, the applicable national and EU provisions, and the reasons for referring the questions.

The CJEU has issued recommendations to national courts and tribunals to promote clear and complete references.

The current recommendations were published in October 2024 and reflect the reform transferring certain preliminary references to the General Court.

9.2. Written observations

Once the reference has been received, the Registry notifies the parties to the national proceedings and the other interested participants identified by Article 23 of the Statute.

These may include:

• The parties to the main national proceedings.
• The Member States.
• The European Commission.
• The EU institution, body, office, or agency responsible for the act whose validity or interpretation is questioned.

The participants may submit written observations within the applicable time limits.

These observations allow the Court to consider different legal perspectives and provide a more complete analysis of the relevant EU-law issues.

The parties to the national proceedings participate in the preliminary ruling procedure, but they do not become parties to a new appeal against the national court’s decision.

9.3. Oral hearing

The Court may hold an oral hearing where it considers this useful for resolving the questions referred.

The hearing allows participants to clarify their arguments and respond to questions from the judges.

Not every preliminary reference requires an oral hearing. The Court may decide a case on the basis of the written procedure where the applicable rules and circumstances permit.

9.4. The role of the Advocate General

An Advocate General may deliver an independent, reasoned Opinion in cases where such an Opinion is required or considered appropriate under the Statute and Rules of Procedure.

The Opinion analyses the legal issues and proposes a solution to the Court.

It is not a judgment and does not bind the Court. The judges remain responsible for the final decision.

The role of the Advocate General is particularly significant in complex cases involving constitutional principles, fundamental rights, institutional competence, or difficult questions of interpretation.

9.5. The judgment

The CJEU delivers its ruling in response to the questions referred.

The ruling may interpret the relevant EU provisions, clarify the legal requirements applicable to the dispute, or determine the validity of an EU act.

The judgment is then communicated to the referring court, which resumes the national proceedings and applies the ruling.

The CJEU does not ordinarily decide which party wins the national case. That remains the responsibility of the national court.

10. The 2024 Reform: Transfer of Certain Preliminary References to the General Court

10.1. Background to the reform

For many years, preliminary references were determined exclusively by the Court of Justice.

As the number and complexity of references increased, the EU legislature considered it necessary to redistribute part of the workload within the CJEU.

Regulation (EU, Euratom) 2024/2019 amended Protocol No 3 on the Statute of the Court of Justice of the European Union.

The reform took effect on 1 October 2024 and introduced Article 50b into the Statute.

It is intended to allow the Court of Justice to devote greater resources to complex constitutional, institutional, and fundamental-rights questions, while enabling the General Court to deal with certain more specialised categories of preliminary references.

10.2. The six transferred subject areas

The General Court now has jurisdiction to hear preliminary references that fall exclusively within one or more of the following areas:

1. The common system of value added tax (VAT).
2. Excise duties.
3. The Customs Code.
4. The tariff classification of goods under the Combined Nomenclature.
5. Compensation and assistance to passengers in cases of denied boarding, delay, or cancellation of transport services.
6. The system for greenhouse gas emission allowance trading.

The transfer is limited to these specified areas.

It does not mean that every reference involving taxation, transport, or environmental law will automatically be heard by the General Court. The subject matter must fall within the precise categories defined by Article 50b.

10.3. All references are initially submitted to the Court of Justice

An important procedural detail is that national courts do not decide which of the two EU courts will hear their reference.

Every request under Article 267 is submitted to the Court of Justice.

The Court of Justice examines the subject matter and determines whether the request falls exclusively within one or more of the areas transferred to the General Court.

Where the conditions are satisfied, the request is transmitted to the General Court.

This arrangement preserves procedural simplicity for national courts, which continue to use the same preliminary reference mechanism.

10.4. Constitutional questions remain with the Court of Justice

The General Court does not receive a reference merely because the underlying national dispute concerns one of the six specified areas.

The Court of Justice retains jurisdiction where the request raises independent questions concerning:

• The interpretation of primary EU law.
• Public international law.
• General principles of EU law.
• The Charter of Fundamental Rights of the European Union.

This exception reflects the horizontal significance of these legal issues.

For example, a VAT dispute may also raise an independent question concerning the interpretation of a fundamental right under the Charter. In such circumstances, the Court of Justice retains jurisdiction.

10.5. The legal effect of General Court preliminary rulings

The General Court exercises preliminary ruling jurisdiction under Article 267 in the transferred subject areas.

Its rulings are not ordinary administrative decisions or recommendations. They are judicial determinations delivered within the framework of Article 267.

The General Court may refer a case to the Court of Justice where it considers that the case requires a decision of principle likely to affect the unity or consistency of EU law.

The Statute also provides for an exceptional review mechanism where a General Court decision on a preliminary reference risks affecting the unity or consistency of EU law.

This is not a routine appeal available to dissatisfied parties. It is a specialised mechanism designed to protect the coherence of the Union legal order.

The reform therefore redistributes judicial responsibility without creating two competing systems of preliminary interpretation.

11. Effects of Preliminary Rulings

11.1. Binding effect on the referring court

The national court that made the reference must apply the ruling when deciding the underlying dispute.

It cannot disregard the authoritative interpretation of EU law merely because it would prefer a different interpretation.

The national court remains responsible for applying the interpretation to the facts and national law, but it must do so consistently with the ruling.

11.2. Authority beyond the individual proceedings

Although the preliminary ruling is delivered in response to a particular national dispute, its legal significance extends beyond that case.

Other national courts dealing with materially similar legal questions must take account of the interpretation established by the CJEU or, within the transferred areas, the General Court.

This broader authority is essential to the uniform application of EU law.

The preliminary ruling does not operate like a domestic judgment that binds only the parties to a particular dispute. It clarifies the meaning of EU law as a matter of Union law.

11.3. Temporal effects of interpretative rulings

As a general rule, an interpretation given by the CJEU explains the meaning and scope of the EU provision as it should have been understood from the time that provision entered into force.

This is sometimes described as the ex tunc effect of preliminary rulings.

The Court may exceptionally limit the temporal effects of an interpretation where legal certainty and other compelling considerations justify such a limitation.

Such restrictions are exceptional. They are not granted simply because the interpretation may have financial or administrative consequences for Member States.

11.4. Effects of a ruling on validity

A ruling declaring an EU act invalid has consequences beyond the immediate dispute.

The referring court must give effect to the finding of invalidity, and the institutions responsible for the act may need to take appropriate measures.

A declaration of invalidity through a preliminary ruling is distinct from the annulment of an act under Article 263 TFEU, although both procedures contribute to the judicial control of EU legality.

The principle established in Foto-Frost ensures that questions concerning the invalidity of EU acts are resolved by the competent EU court rather than independently by national courts.

12. The Relationship Between Preliminary References and National Judicial Independence

The preliminary reference procedure depends on the independence of national courts.

A national court must be able to decide whether an EU-law question requires referral without improper interference from the executive, legislature, or other authorities.

Member States may establish national procedural rules, but those rules must not undermine the effectiveness of Article 267.

The CJEU has repeatedly examined national arrangements that could restrict the ability of courts to refer questions or to apply EU law following a preliminary ruling.

In Rheinmühlen-Düsseldorf (Case 166/73), the Court emphasised the importance of the national court’s ability to refer questions and to preserve its responsibility for the proceedings.

In Elchinov (Case C-173/09), the Court addressed restrictions arising from national rules that could prevent a lower court from applying an interpretation of EU law given by the CJEU, particularly where that interpretation differed from the position adopted by a higher national court.

The broader principle is that national procedural and judicial hierarchies must operate consistently with the obligations arising from EU law.

A national court cannot be deprived of its ability to make a reference merely because a higher domestic court has expressed a different view of the relevant EU-law question.

This does not abolish national judicial hierarchy. It establishes that domestic procedural arrangements must respect the specific cooperation mechanism created by the Treaties.

13. Preliminary References and the Primacy of EU Law

The preliminary reference procedure is closely connected to the principle of primacy.

Where national law conflicts with an applicable provision of EU law, national courts must give effect to EU law within the scope of the Union’s competences.

A preliminary reference may be necessary where the national court is uncertain about the interpretation or validity of the EU provision relevant to the conflict.

However, the national court should not treat the preliminary reference as a reason to disregard its own responsibility to protect rights arising under EU law.

The CJEU’s ruling provides the necessary clarification, after which the national court must apply the relevant EU-law principles.

The relationship is particularly important where constitutional review procedures exist within a Member State. National arrangements must not prevent a court from making a preliminary reference at the appropriate stage or from ensuring the effectiveness of EU law.

In Melki and Abdeli, the CJEU explained that a national constitutional review mechanism may coexist with Article 267, provided that it does not interfere with the national court’s ability to refer questions and apply EU law.

The preliminary reference procedure therefore supports both judicial cooperation and the practical operation of primacy.

14. Accelerated and Urgent Preliminary Ruling Procedures

Ordinary preliminary ruling proceedings may take considerable time. In certain cases, the nature of the dispute requires a faster judicial response.

The Rules of Procedure of the Court of Justice provide for accelerated proceedings and the urgent preliminary ruling procedure.

14.1. Accelerated procedure

An accelerated procedure may be requested where the nature of the case requires it to be dealt with within a short period.

The Court decides whether the circumstances justify acceleration.

The procedure is intended for cases in which delay could seriously affect the effectiveness of judicial protection or the practical resolution of the national dispute.

It does not automatically apply simply because the referring court or a party considers the matter important.

14.2. Urgent preliminary ruling procedure

The urgent preliminary ruling procedure (PPU) is particularly associated with certain matters within the Area of Freedom, Security and Justice.

It may be used where the circumstances require an especially rapid decision, for example where a person is deprived of liberty or where the delay could seriously affect the legal position of a person in proceedings concerning family matters, parental responsibility, or judicial cooperation.

The procedure involves shortened time limits and specialised arrangements intended to enable the CJEU to respond quickly.

The urgency must be justified by the circumstances of the national proceedings and accepted by the Court.

15. Practical Examples of Preliminary References

The operation of Article 267 becomes clearer when considered through typical legal disputes.

Example 1: Consumer protection

A consumer brings proceedings against a company, arguing that a contractual term is unfair under national legislation implementing an EU consumer protection directive.

The national court is uncertain about the meaning of a particular provision of the directive.

It may refer a question to the CJEU concerning the interpretation of that provision. The CJEU clarifies the EU-law requirement, and the national court decides whether the contractual term satisfies the relevant legal standard.

Example 2: Employment rights

An employee claims that a national employment practice violates rights established by an EU directive.

The national court considers that the scope of the directive is uncertain and that the interpretation may determine the outcome.

It may refer the question under Article 267. The CJEU interprets the relevant EU provision, while the national court determines the employee’s rights under the applicable legal framework.

Example 3: VAT dispute

A company challenges a tax assessment and argues that the national tax authority has incorrectly interpreted an EU VAT provision.

The national court refers the question to the CJEU. Because VAT is one of the subject areas covered by Article 50b of the Statute, the Court of Justice may transfer the request to the General Court, provided that the reference falls exclusively within that area and does not raise an independent question reserved to the Court of Justice.

Example 4: Validity of an EU regulation

A company argues before a national court that a regulation forming the legal basis of an administrative penalty violates fundamental rights.

The national court may examine the challenge and, if it considers the validity argument well founded, must refer the question to the CJEU.

It cannot declare the regulation invalid itself.

Example 5: Conflicting national and EU interpretations

A national court of last instance is asked to interpret a provision of EU law that has not previously been considered by the CJEU.

The wording appears clear in the national language, but the court identifies a possible difference between authentic language versions.

The court must consider the CILFIT criteria before deciding whether it may rely on the acte clair exception. If reasonable doubt remains and the question is necessary to decide the dispute, a reference is required.

16. Practical Method for Preparing a Preliminary Reference

A well-prepared preliminary reference should identify a genuine legal problem and provide the CJEU with the information needed to answer it.

The following method is useful for national judges and legal practitioners preparing submissions on whether a reference should be made.

First: identify the EU-law issue. Determine whether the dispute concerns the interpretation of the Treaties, the interpretation of an EU act, or the validity of an EU act.

Second: establish the relevance of the question. Explain why the answer may affect the outcome of the national proceedings. A question that has no practical connection with the dispute is unlikely to justify a reference.

Third: identify the relevant legal provisions. Cite the Treaty article, regulation, directive, decision, or other EU measure that requires interpretation or validity review.

Fourth: examine existing CJEU case law. Search for judgments that have already interpreted the provision. Determine whether the question is resolved by established case law or whether a genuine interpretative difficulty remains.

Fifth: consider the court’s position under Article 267. Establish whether the national court has discretion to refer or is subject to the mandatory obligation under Article 267(3).

Sixth: consider the CILFIT exceptions. Where the court is one of last instance, assess whether the question is irrelevant, already resolved, or sufficiently clear to leave no reasonable doubt.

Seventh: provide the factual and legal background. Explain the dispute, identify the relevant national rules, and show how the EU-law issue arises.

Eighth: formulate precise questions. The questions should identify the legal uncertainty without asking the CJEU to decide the entire national dispute.

Ninth: consider the appropriate procedure. Determine whether an ordinary, accelerated, or urgent procedure may be justified. Consider also whether the subject matter falls within the six areas transferred to the General Court under Article 50b of the Statute.

Tenth: explain the anticipated practical consequences. The reference should make clear how the requested interpretation or validity determination will assist the national court in resolving the proceedings.

A precise reference improves the quality of judicial cooperation and reduces the risk that the CJEU will be unable to provide a useful answer.

17. Key Takeaways

• Article 267 TFEU establishes a procedure of judicial cooperation between national courts and the CJEU.
• The procedure concerns the interpretation of the Treaties and the validity and interpretation of EU acts.
• The national court retains responsibility for the underlying dispute and the final judgment.
• Only bodies qualifying as courts or tribunals under the autonomous EU-law criteria may make references.
• Courts generally have discretion to refer questions where an answer is necessary to decide the case.
• Courts of last instance must refer necessary questions unless a recognised exception applies.
• The CILFIT doctrine recognises three situations in which a final-instance court may refrain from referring.
• Acte éclairé concerns an EU-law issue already resolved by the CJEU.
• Acte clair concerns an interpretation so clear that no reasonable doubt remains.
• Consorzio Italian Management clarified the application of the CILFIT exceptions and the need for adequate reasons.
• A national court may not declare an EU act invalid. Under Foto-Frost, that authority belongs to the CJEU.
• Preliminary references must arise from genuine proceedings and concern questions relevant to the dispute.
• The national court controls the formulation and timing of the questions, although the CJEU may reformulate them where appropriate.
• The ruling binds the referring court and has broader authority for the uniform interpretation of EU law.
• Since 1 October 2024, the General Court has jurisdiction over preliminary references in six specified subject areas under Article 50b of the Statute.
• All references are initially submitted to the Court of Justice, which determines whether they should be transferred.
• National procedural rules and judicial hierarchies must not undermine the effectiveness of Article 267.
• Accelerated and urgent procedures are available in appropriate circumstances.

18. Frequently Asked Questions

1. What is a preliminary reference under Article 267 TFEU?

It is a procedure through which a national court asks the CJEU to interpret the Treaties or determine the validity or interpretation of an EU act. The procedure ensures that EU law is interpreted consistently across the Member States.

2. Can individuals refer a question directly to the CJEU?

No. Individuals and companies cannot independently submit preliminary references. They may ask the national court hearing their dispute to refer a question, but the decision belongs to the court.

3. Is a national court required to make a preliminary reference?

Not always. Most national courts have discretion to refer questions where an answer is necessary to decide the case. Courts of last instance are generally required to refer relevant questions, subject to the exceptions recognised by the CJEU.

4. What is the difference between Article 267(2) and Article 267(3)?

Article 267(2) gives national courts a discretionary power to refer questions. Article 267(3) imposes an obligation on courts against whose decisions there is no judicial remedy under national law to refer necessary questions, subject to recognised exceptions.

5. What is the acte clair doctrine?

The acte clair doctrine allows a court of last instance to refrain from making a reference where the correct interpretation of EU law is so obvious that no reasonable doubt remains. The court must consider the particular characteristics of EU law, including its multilingual nature and autonomous terminology.

6. What is the acte éclairé doctrine?

The acte éclairé doctrine applies where the CJEU has already interpreted the relevant EU-law provision. A further reference may be unnecessary if the existing case law resolves the question.

7. Can a national court declare an EU regulation invalid?

No. Under Foto-Frost, national courts cannot declare EU acts invalid. If a national court considers that an EU act may be invalid, it must refer the question to the CJEU.

8. Does the CJEU decide the national dispute?

No. The CJEU answers the questions of EU law. The national court remains responsible for establishing the facts, applying national law, and delivering the final judgment.

9. Are preliminary rulings binding on national courts?

Yes. The referring court must apply the ruling when resolving the national proceedings. The interpretation also has broader authority because it clarifies the meaning of EU law for other courts and authorities.

10. Can a national court make more than one preliminary reference in the same proceedings?

Yes. A further reference may be necessary where new interpretative difficulties arise or where clarification is needed concerning the scope of an earlier ruling. The fact that a court has already made one reference does not automatically remove the obligation to refer a new necessary question.

11. Which court now decides preliminary references after the 2024 reform?

The Court of Justice continues to receive all preliminary references. It transfers references to the General Court where they fall exclusively within the six subject areas specified in Article 50b of the Statute and do not raise independent questions reserved to the Court of Justice.

12. Can a national court refuse to refer a question because a higher national court has already ruled on the issue?

National judicial hierarchy does not automatically prevent a lower court from making a reference. National rules must respect the ability of courts to seek an authoritative interpretation of EU law under Article 267.

13. What is the urgent preliminary ruling procedure?

It is a specialised procedure designed to allow particularly urgent matters, especially certain cases concerning the Area of Freedom, Security and Justice, to be resolved more rapidly. The Court decides whether the circumstances justify its use.

14. What happens if a national court ignores a mandatory obligation to refer?

A failure to comply with Article 267(3) may raise questions concerning the correct application of EU law, effective judicial protection, and the responsibility of the Member State. In certain circumstances, failure to make a required reference may also be relevant to State liability under EU law.

19. Conclusion

The preliminary reference procedure is a central mechanism through which the European Union maintains the coherence of its legal order while preserving the essential role of national courts.

Its significance lies in the distribution of judicial responsibility. National courts remain the principal forums for resolving disputes involving EU law, but they do not have to interpret every difficult question in isolation. Article 267 provides a direct institutional channel through which they can obtain authoritative guidance from the Union’s judicial system.

The procedure also protects the constitutional limits of EU authority. The distinction between interpretation and validity ensures that national courts can apply EU law while leaving the determination of the invalidity of Union acts to the competent EU court. The mandatory reference obligation imposed on courts of last instance reduces the risk of incompatible national interpretations, while the CILFIT doctrine prevents unnecessary references where the legal position is already settled or genuinely clear.

The 2024 reform has introduced an additional institutional dimension by transferring a limited category of preliminary references to the General Court. This change does not alter the fundamental purpose of Article 267. Rather, it adapts the organisation of the EU judicial system to the increasing volume and complexity of preliminary ruling proceedings.

Ultimately, Article 267 demonstrates that the uniform application of EU law does not depend solely on centralised judicial authority. It depends on an ongoing relationship between national courts and the CJEU, in which each performs a distinct but complementary function.

The national court brings the concrete dispute and identifies the legal uncertainty. The CJEU or, within the transferred areas, the General Court provides the authoritative interpretation or validity determination. The national court then completes the judicial process by applying that answer to the case.

This model of judicial cooperation is one of the principal reasons why EU law can operate as a common legal system across different national jurisdictions.

20. Primary Legal Sources and Further Reading

Treaties and legislation

• Article 19 TEU – The Court of Justice and effective legal protection
• Article 267 TFEU – Preliminary rulings
• Article 256 TFEU – Jurisdiction of the General Court
• Protocol No 3 on the Statute of the Court of Justice of the European Union
• Regulation (EU, Euratom) 2024/2019 – Amendment of the Statute of the CJEU
• Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (2024)
• Rules of Procedure of the Court of Justice
• Rules of Procedure of the General Court

Leading CJEU judgments

• Case 26/62, Van Gend en Loos v Nederlandse Administratie der Belastingen
• Joined Cases 28/62 to 30/62, Da Costa en Schaake
• Case 283/81, CILFIT v Ministry of Health
• Case 314/85, Foto-Frost v Hauptzollamt Lübeck-Ost
• Case 166/73, Rheinmühlen-Düsseldorf
• Case C-210/06, Cartesio
• Joined Cases C-188/10 and C-189/10, Melki and Abdeli
• Case C-173/09, Elchinov
• Case C-561/19, Consorzio Italian Management and Catania Multiservizi
• Case C-54/96, Dorsch Consult

Official institutional resources

• Court of Justice of the European Union – Preliminary rulings
• Court of Justice of the European Union – Procedural texts
• EUR-Lex – Preliminary ruling proceedings: recommendations to national courts
• European Parliament Research Service – Procedures before the Court of Justice of the European Union
• CURIA – Search the case law of the Court of Justice of the European Union