Parental responsibility in a cross-border context

Which national courts can refer a question to the European Court of Justice?

It is the national court which takes the decision on whether to refer a case to the European Court of Justice under the preliminary reference procedure. The national court can decide the stage of the proceedings at which it is appropriate to ask for a preliminary reference once it has become clear that a point of interpretation of EU law has arisen and the factual context of the case has been outlined. Once a preliminary reference has been made to the Court, the national proceedings should be stayed until the European Court of Justice reaches a judgment.

If the point of interpretation has:

• already been decided by the Court, or
• does not need to be decided for a decision to be made by the national court, or
• the point of interpretation is clear, there is no need to request a preliminary reference.

Even where no precedent on a point of interpretation exists, a preliminary reference need not be made if:

• ...the correct application of [EU] law may be so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved. Before it comes to the conclusion that such is the case, the national court or tribunal must be convinced that the matter is equally obvious to the courts of the other Member States and to the Court of Justice.’ Case 283/81 CILFIT [1982] E.C.R 3481, paragraph 16.
• This is a high threshold of certainty in the interpretation of EU law. To maintain legal certainty, the given interpretation must be obvious and open to no doubt, otherwise a preliminary reference to the European Court of Justice may be necessary.