Preliminary Ruling Procedure
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INTRODUCTION
The Preliminary ruling procedure belongs to the most important and most frequent proceeding hold by the Court of Justice. The aim of this article is to provide relevant information about the recent case law of the Court of Justice issued in preliminary ruling procedure.
The importance of the Preliminary ruling procedure was formulated by the Court of Justice of the European Union (hereinafter referred as Court of Justice) in Rheinmühlen case as follows:
“Article 267 TFEU is essential for the preservation of the community character of the law established by the treaty and has the object of ensuring that in all circumstances this law is the same in all states of the community.”
Whilst it thus aims to avoid divergences in the interpretation of Union law which the national courts have to apply, it likewise tends to ensure this application by making available to the national judge a means of eliminating difficulties which may be occasioned by the requirement of giving Union law its full effect within the framework of the judicial systems of the Member States. Consequently, any gap in the system so organized could undermine the effectiveness of the provisions of the Treaty and the secondary Union law. The provisions of Article 267 TFEU which enable every national court or tribunal without distinction to refer a case to the Court of Justice for a preliminary ruling when it considers that a decision on the question is necessary to enable it to given judgment, must be seen in this light. In recent case Gourmet Classic Court of Justice refreshed the famous Reinmühlen formula as follows: Article 267 TFEU aims to avoid divergences in the interpretation of Community law which the national courts have to apply and aims to ensure that, in all circumstances, that law has the same effect in all Member States.
A significant milestone in recent development of European law as itself and also the preliminary ruling procedure was the effectiveness of the Lisbon Treaty. Prior to the Lisbon Treaty two variants of the preliminary ruling procedure were applicable to the Area of Freedom, Security and Justice (AFSJ), which were found in Art. 35 EU and art. 68 EC. These variants are no longer applicable, because the AFSJ is now subject to the “normal” Treaty rules concerning preliminary rulings. There are, however, transitional provisions that limit the legal impact of the Lisbon Treaty on measures concerning Police and Judicial Cooperation in Criminal Matters adopted before its entry into force.
CARTESIO CASE – IMPORTANT RECENT CASE
Cartesio case is important because of the supported ability of lower courts by the Court of Justice to refer to the Court of Justice, even in the face of a negative decision by a higher national court. In this case the Court of Justice seems to put an end to the uncertainty by interpreting the Treaty as permitting the appeal from such orders but excluding such national legal rules which allow appellate courts to set aside or modify the reference by quashing or varying the order.
It is known that the national court can initiate a reference for a preliminary ruling even if its own domestic law does not regulate it or its procedural framework. The domestic law of several Member States does not contain separate procedural legal provisions about referring for a preliminary ruling (with the exception of, for example, Scotland, England and Wales, Austria). The absence of domestic legal regulation does not impede preliminary references. The possibility of an appeal against the decision to refer for a preliminary ruling is a very important question in light of the fact that the appeal essentially restricts the national court's right to refer based on the TFEU. The Court of Justice has stated in several cases: Article 267 TFEU makes it possible for national courts to make preliminary references freely and to weigh its necessity. However, according to the Court of Justice, Article 267 TFEU does not preclude the possibility of an appeal against the ruling to refer if the domestic law so provides. The Treaty seems not to give full autonomy to the referring court in the case when domestic law provides ordinary legal remedies against the reference. Naturally, in such circumstances it is up to the parties to the litigation whether they will question the reference by raising an appeal. The judgment the Court of Justice gave in the Cartesio case has brought significant turn in the Court's position on the question of appealing the national courts' decisions of reference. The Cartesio case substantively concerned the compatibility of Hungarian law preventing the Hungarian companies from transferring their seats to another Member State of the Union with Articles 43 and 48 EC (now Articles 49 and 54 TFEU) relating to the freedom of establishment. In this respect, the judgment of the Court of Justice has not brought significant change in the prevailing case law. However, the national court making the reference (the Regional Court of Appeal of Szeged) referred some questions for a preliminary ruling addressing the procedural conditions of preliminary references including the appeal ability of national courts' decisions to refer. The European Court's answer to the third question referred by the national court implied real novelty in dealing with the problem and on the merits the Court substantially modified its forty-year case law.
The important question of Cartesio case is as follows: "Does a national measure which, in accordance with domestic law, confers a right to bring an appeal against an order making a reference for a preliminary ruling limit the power of the Hungarian courts to refer questions for a preliminary ruling or could it limit that power – derived directly from Article 234 [presently Article 267 TFEU] – if, in appeal proceedings, the national superior court may amend the order, render the request for a preliminary ruling inoperative and order the court which issued the order for reference to resume the national proceedings which had been suspended?"
In the Cartesio case was no appeal brought against Regional´s court decision to make a reference, this means that this question would be hypothetical and it is known from settled case-law that Court of Justice is not giving answers to hypothetical questions. In light of Article 267 TFEU the answer to the question is not necessary (or even useful) for the referring court to determine and settle the legal issues which have arisen on the facts of the dispute. The admissibility problem has been solved in an interesting way. Ireland and the Commission maintained that the question was hypothetical for the reasons I have mentioned above, and Advocate General Poiares Maduro - in his opinion - provided a set of reasons for the conclusion that the Court should deal with the third question despite its hypothetical nature. However, the reasons set forth by the Advocate General were not truly convincing and would have run against the Foglia - Robards - Dias line of cases concerning the handling of hypothetical questions referred to the Court by national courts. The Court of Justice paying great deference to the referring court relied on and maintained the presumption, that the question referred by the national court was relevant to the facts of the particular case and some uncertainty relating to this relevance was not enough to reject the answer (presumption of relevance). So, it was a matter for the national court to see that the preliminary ruling be useful for its decision in the case.
The fundamental question in this case is if the national law might limit the right of national court to initiate the preliminary ruling procedure, and if it does, how and to what degree. In the Bosch case the Court of Justice concluded that the Treaty did not prevent the national court of cassation from entertaining the appeal against the decision to refer, but left the admissibility of such appeals to the national law and the decisions of (higher) national courts. In the well known two Rheinmühlen-Düsseldorf cases of 1974 the question lay in that whether the inferior court had any right to make a reference to the Court of Justice if the legal issue relating to the Union law constituting the subject matter of the reference had already been authoritatively decided by a superior court. The Court of Justice pointed out that a rule of national law whereby a national court was bound on points of law set forth in the decision of a superior court could not deprive the inferior court of its power to refer to the Court of Justice such questions of Union law that had been determined by the superior court's ruling . It follows, that if an inferior court considers the previous, authoritative case law of the superior courts contrary to the EU law or has doubts in this respect, it remains free to refer the question to the Court of Justice and thereby effectively challenging the prevailing legal position on this question in the national legal practice.
In the two Rheinmühlen-Düsseldorf cases the Court established a powerful procedural weapon for the inferior national courts, but permitted the Member States to defuse this weapon by allowing appeal or other legal remedies from the orders to refer questions to the European Court for a preliminary ruling. In Cartesio the third question of the Regional Court of Appeal of Szeged pointed precisely towards the tension between the national courts' right to refer for a preliminary ruling based on EU law and the appealability of orders to refer based on national procedural rules. The most important returns of the Cartesio judgment are that the Court narrowed down the permissible domain of the legal remedies in such a way that the appeal essentially becomes aimless or useless. The critical part of the judgment runs as follows:“……… where rules of national law apply which relate to the right of appeal against a decision making a reference for a preliminary ruling, and under those rules the main proceedings remain pending before the referring court in their entirety, the order for reference alone being the subject of a limited appeal, the second paragraph of Article 267 TFEU is to be interpreted as meaning that the jurisdiction conferred by that provision of the Treaty on any national court or tribunal to make a reference to the Court for a preliminary ruling cannot be called into question by the application of those rules, where they permit the appellate court to vary the order for reference, to set aside the reference and to order the referring court to resume the domestic law proceedings” .
Consequently, the order initiating a preliminary ruling procedure may be appealed to a superior court, but cannot not be varied or quashed by the court of second instance without infringing the Article 267 of the TFEU. The point lies in that even in case of an appellate procedure the referring court of first instance retains its freedom to decide on maintaining the reference or withdrawing it, with knowledge of the appellate court's opinion. It is worth noting that it has been firmly established in the Court's case law that the assessment of the relevance and necessity of the question referred for a preliminary ruling is the responsibility of the referring court alone, subject to some limited exceptions. “In accordance with Article 267 TFEU, the assessment of the relevance and necessity of the question referred for a preliminary ruling is, in principle, the responsibility of the referring court alone, subject to the limited verification made by the Court in accordance with the case-law cited in paragraph 67 above. Thus, it is for the referring court to draw the proper inferences from a judgment delivered on an appeal against its decision to refer and, in particular, to come to a conclusion as to whether it is appropriate to maintain the reference for a preliminary ruling, or to amend it or to withdraw it.”
The conclusion that the appellate court may not put aside or modify the reference by varying or quashing the order of reference was first explicitly deduced by the Court of Justice in the Cartesio case. In Cartesio the Court of Justice practically eliminated the restriction by appeal on the national courts' right to refer for a preliminary ruling to which it had turned a blind eye for thirty years and gave the lower courts free hand to avail them of this right.
By: Daniela Ježová, law office in Bratislava, Slovakia