Process and procedure: Making a preliminary reference
Forming the Preliminary Reference
The national court has to formulate and communicate the preliminary reference so that the European Court of Justice can understand the factual context of the case, the legal issues arising and the particular points of interpretation for resolution by the Court. The Court gives guidance to national courts on making a preliminary reference [2011] OJ C 160/1.
The central element of the reference is the creation of the questions of interpretation, directed to the Court for consideration. These questions should identify the points which are necessary for the national court to reach a decision and should be capable of being understood without the underlying factual context. There is no limit on the number of questions that can be asked and a question may be dependent on the outcome of a preceding question. As this is the central element of the proceedings before the European Court of Justice, the questions must be formulated so as to address the problem of interpretation that has arisen, so that the answers provide the national court with the necessary guidance to give judgment on the case.
The reference should be drafted:
- Simply, clearly and precisely, avoiding superfluous detail
- A maximum of 10 pages is usually sufficient to set out the context of reference
The European Court of Justice’s guidance identifies the key requirements for a good reference:
- A brief account of the subject-matter of the dispute and the relevant finding of fact, or the factual situation on which the question referred is based
- Set out any relevant national provisions and relevant national case law, giving precise references
- Identify the EU law provisions relevant to the case, as accurately as possible
- Explain the reasons which have prompted the national court to raise the question of interpretation and the relationship between the national law and EU law
- Include, if necessary, a summary of the arguments of the parties’ to proceedings
- If necessary, the information about the parties to proceedings may be anonymous, which is particularly important in sensitive family law cases
- The question(s) should appear in a separate and clearly identified section. It must be possible to understand them without referring to the grounds for the reference
- The national court may state its own view on the answers to the questions in the reference