Background
The preliminary reference procedure is the process that national courts can use to seek guidance from the European Court of Justice on the interpretation and meaning of European Union law. It allows the courts in the Member States to seek a definitive ruling on the meaning of EU law. The application of EU law to the particular facts of the case in hand remains the responsibility of the national court which must stay proceedings and wait for the judgment from the European Court of Justice before completing its deliberations. The reference to the European Court of Justice is only to resolve the points of interpretation of EU law, preliminary to the final decision of the national court.
The preliminary reference procedure is established by Article 267 of the Treaty on the Functioning of European Union [2010] OJ C83/01:
(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 European Court of Justice has jurisdiction to interpret the EU Treaties and any acts created under the treaties, including legislative acts. It is the responsibility of the courts of the Member States to seek a reference when the meaning or effect of a European rule is unclear. In family law, this means that any question of interpretation arising under EU family law Regulations can be referred to the European Court of Justice for a decision. Questions of interpretation arising from the following Regulations can be referred:
- Regulation 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation 1347/2000 OJ [2003] L 338/1;
- Council Regulation (EC) No 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations OJ [2009] L 7/1;
- Council Regulation (EU) No 1259/2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation OJ [2010] L 343/10
Where there is a dispute over the meaning of one of the provisions in any of these Regulations in a cross-border family case; or it is unclear how the provisions are intended to interact with one another; or the effect of a rule is unclear, the national court can request a preliminary reference from the European Court of Justice.