EU Law I: Preliminary ruling

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Preliminary ruling (Art. 234 EC)

• Substance of preliminary rulings
  • Interpretation of EC law
    • The EC Treaty and acts of institutions
    • Act of institutions: binding acts + non-binding acts
    • International treaties
• No substance/ruling
  • Rulings on national law
  • Advisory opinions or hypothetical questions

• Validity of European law acts
  • Control of borderline case of 1.pillar to 2. and 3d pillar possible
  • But no jurisdiction in 2.pillar and 3.pillar (see Art.46 EU however Art.35 EU for exceptions)
  • National court cannot declare Community law invalid

• Who can refer to ECJ?
  • Every court and tribunal of MS
    • A permanent and independent body which is established by law and can give binding decisions to settle disputes (Vaassen criteria)

• What matter can be referred?
  • Questions of interpretation of Community law
  • no abstract questions considered, no hypothetical questions or interpretation of national law, must be a pending case
  • ECJ may reformulate the questions
  • Clear description of factual and legal context

• Obligation to refer by national courts?
  • No: Lower national courts have the discretion to refer
  • Obligation to refer (para.3) Court or tribunal against whose decision no judicial remedy is possible (last instance)

• Acte clair provision
  • Exception from the obligation to refer – acte éclairé and acte clair doctrine (CILFIT decision 1982)
    • Acte éclairé: The provision has already been interpreted by the ECJ, identical question
    • Acte clair: The correct application is so obvious as to leave no scope for doubt, can be deduced from case law

References & Links

Lecture Slides covering this topic

• Lecture 7

See also

• Art. 234 EC
• Exam 2008

• EU Law I | Main page