Preliminary ruling

A preliminary ruling is a decision of the European Court of Justice (ECJ) on the interpretation of European Union law, made at the request of a court of a European Union member state. The name is somewhat of a misnomer in that preliminary rulings are not subject to a final determination of the matters in question, but are in fact final determinations of the law in question. Preliminary rulings can also be made, in certain circumstances, by the European General Court, although most are made by the ECJ.

A request (or reference) for a preliminary ruling is made by way of submitting questions to the ECJ for resolution. However questions are not answered in abstraction, but rather are submitted together with the circumstances leading up to their being asked. Thus whilst the ECJ is limited to deciding the law in question, the ECJ's ruling frequently leave little room to rule other than in a certain way. The ECJ may also decline to give judgement in the absence of a genuine dispute.[1]

Article 267 of the Treaty on the Functioning of the European Union states following:

"The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:
(a) the interpretation of the Treaties;
(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;
Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.
Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.
If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay."

The matter of what constitutes a "court or tribunal" is a matter of Union law and it is not to be determined by reference to national law.[2] In determining whether or not a body is a "court or tribunal of Member State" the European Courts will take a number of issues into account, namely whether:

  1. it is established by law,
  2. it is permanent,
  3. its jurisdiction is permanent,
  4. it has an adversarial procedure,
  5. it applies rules of law, and
  6. it is independent.[3]

However, these criteria are not absolute. In Broekmeulen v Huisarts Registratie Commissie[4] the ECJ ruled that a body established under the auspices of the Royal Medical Society for the Promotion of Medicine, was a "court or tribunal" within the meaning of the treaty, even though the latter was a private association.

Footnotes

  1. ^ Case 244/80, Pasquale Foglia v. Mariella Novello paragraph 18.
  2. ^ Case C-24/92, Corbiau v Administration des Contributions at paragraph 15.
  3. ^ Case C-54/96 Dorsch Consult Ingenieurgesellschaft v Bundesbaugesellschaft Berlin at paragraph 23.
  4. ^ Case 246/80, C. Broekmeulen v Huisarts Registratie Commissie