Strengths and weaknesses of preliminary ruling procedure under Article 267 of the Treaty on the Functioning of the European Union (previously Art 234EC).

“It is essential to the uniformity and effectiveness of Community law that a system exists whereby national courts, faced with a dispute as to the interpretation or validity of Community law, may ask the Court of Justice for a ruling. However, the system is only as good as its constituent parts, and the national courts…have regularly declined to refer matters which are properly the province of the Court of Justice. While this approach has its advantages in terms of speed and cost, it does make it more likely that EC law will not be applied effectively and uniformly across the Community.”

(Deards & Hargreaves, 2004)

What are the strengths and weaknesses of the preliminary ruling procedure under Article 267 of the Treaty on the Functioning of the European Union?

Well, in practice the procedure of Article 267 works in the following ways. Parties to a dispute can raise the issue of EU law relevancy before their national court and urge their national court to request a preliminary ruling. This is then discussed to see whether a preliminary ruling is necessary. If the national court decides that a preliminary ruling is necessary in order to deliver its judgment, it stays the proceedings and sends its question(s) to the European Court of Justice (ECJ). The file contains a summary of the facts of the issue, a summary of national legislation referring to the issue, and precise questions. After approximately 25 months the ECJ delivers its preliminary ruling and the national court delivers its judgment taking into account the judgments and answers of the ECJ.

Every national court can request a preliminary ruling regarding the interpretation and application of EU law vis-à-vis national measure, if it considers it necessary for delivering its judgment. Highest national courts must request a preliminary ruling from the ECJ, if they consider it necessary for delivering their judgments. ECJ formally does not decide the specific case but only gives an abstract answer; de facto the national court cannot deviate from the preliminary ruling judgment of ECJ. Due to this co-operation every national court is also a form of a European court.

“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 importance and strength of Article 267 preliminary rulings: achieving effective supremacy of EU law, by ensuring uniform application of all EU law in all member states. It is the main mechanism used by the ECJ to harmonise EU law ensuring the law is the same in all the European Union.

Another strength is that this Article is important in ensuring the rights of EU citizens,  when an EU act is involved, only the ECJ may rule on the validity of European Union Law.

Another advantage of preliminary rulings are that it has developed EU Law. Individuals can now rely on EU law, as stated above, in their national courts in order to assert their rights as EU law is supreme as seen in Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1, [1963] CMLR. Preliminary rulings procedure though, can only be effective if there is true cooperation between the ECJ and national courts.

The problems and weaknesses are that some higher courts have abused the doctrine of acte clair and have refused to refer preliminary questions to the ECJ.

The Article continues to state that there are connections between the preliminary ruling system and the directive. Directives and preliminary rulings were the right way to establish EU law as a higher source of law in relation to the legal systems of the Member States. They established a system of co-operation and interaction between the legislative and judicial functions at the level of EU institutions and at the level of the national constitutional organs. Though this had been done it was done in a “haphazard way, given the fortuitous nature of the questions of Community law that come before national courts, and given the vagaries of the Community legislative process.”. (Allott, Preliminary Rulings another infant disease (2000) 25 ELR 538)

Preliminary rulings and directives show the clear separation between the EU legal system from the national legal systems. “They perpetuate the idea that Community law is intrinsically external, exotic even, more like international law than national law.” (Allott, Preliminary Rulings another infant disease (2000) 25 ELR 538). EU law, although certainly a source of law in each Member State, is not perceived as a source of law like any other as the main function of preliminary rulings is the enforcing of the relationship between EU law and national law. Their secondary effect is more horizontal in the sense that it is used to remove disparities in the application of EU law by the different national legal systems.

Preliminary rulings have become similar to directives in the sense that they regulate national law where there is no harmonising directive or where the directive is incomplete or is ineffective to resolve such conflicts. It can be argued that the idea of judicial law-making through the answering of legal “questions” is open to a number of objections.

In the first place, it is not possible to “… legislate in the abstract, as if it were an intellectual or merely rationalistic exercise…questions of law are to be seen as arising from situations of fact, and should be answered in relation to situations of fact. Legal rationality universalises the particular fact-situation in order that the universality of the law can then be applied to that unique fact-situation. Secondly, it is not possible to legislate in the abstract, as if legislating were not an act of social policy-making…Thirdly, and most significant in relation to the constitutional development of the European Union, both preliminary rulings and directives have, over recent years, decayed as instruments of Community law-making and law-applying. More and more, they are crude resolutions of crudely conceived competing interests, usually so-called “national” interests, with the national interest normally being that which is determined by, and articulated by, the executive branch of government, supplemented by non-transparent input…” (Allott, Preliminary Rulings another infant disease (2000) 25 ELR 538).

So what is the solution?

One solution is state liability for breaches of EU law by national courts (Case C 224/01 (Köbler), 30.9.2003): It follows from the requirements inherent in the protection of the rights of individuals relying on EU law that they must have the possibility of obtaining redress in the national courts for the damage caused by the infringement of those rights owing to a decision of a court adjudicating at last instance.

Therefore, the statement is greatly justified as EU law is supreme to national law and this would only be shown fully, if there was a single court giving jurisdiction to all of the EU. Without this, member states would avoid any law of the EU that they consider to not be advantageous to them. Also having in mind the main objective of preliminary rulings is “to provide for a definitive judgment regarding the interpretation and validity of Community law” (M, Cuthbert 2003), it is clear that the importance of asking the Court of Justice for a ruling is vital for harmonisation.