The role of the National Judge in the European Judicial System and the Procedures of the CJEU

The preliminary reference procedure is laid down in Article 19 (3) b) TEU and in Article 267 TFEU. It aims to achieve a uniform interpretation of European Union law by all domestic courts and to assist in the effective judicial protection of individuals. It relies on cooperation between national judges and the Court of Justice (see Cf. Joined Cases C 261/08 and C 348/08 Zurita García and Choque Cabrera [2009] ECR I 10143, paragraph 36, Case C-210/06 Cartesio [2008] ECR I-9641, paragraph 91).

The object of the reference consists questions regarding

• (1) the interpretation of primary European Union law, i.e., the Treaties, Protocols and the Charter of Fundamental Rights and/or
• (2) the interpretation and/or validity of secondary European Union law, that is regulations, directives, decisions and international agreements of the European Union.
• (3) In contrast, the interpretation or validity of domestic law or of the international agreements of the member states is not a valid object for a reference.

In principle, all questions must be relevant for the outcome of the case pending before the domestic court. However, the CJEU considers that, in principle, the referring court alone can assess the necessity of the questions and determine their subject-matter. Therefore, the CJEU will examine the admissibility of a question only in exceptional circumstances. That is the case in particular where the problem referred to the Court is purely hypothetical or where the interpretation of a Community rule which is sought by the national court has no relation to the actual facts of the main action or to its purpose (see Case C 415/93 Bosman [1995] ECR I 4921, paragraph 61, Case C 466/04 Acereda Herrera [2006] ECR I 5341, paragraph 48, Case C 380/05 Centro Europa 7 [2008] ECR I 349, paragraph 53, Joined Cases C 188/10 and C 189/10 Melki and Abdeli [2010] ECR I 5667, paragraph 27).

References can only be made by courts of the member states, but not by other bodies, e.g., private parties or administrative authorities (see Cf. Case C-53/03 Syfait [2005] ECR I 4609, Case C 394/11, Belov [2013] ECR I 0000).

If questions concerning the interpretation of European Union law arise in a pending case, all domestic courts are competent to make a reference (Article 267 (2) TFEU) but courts of last instance are also under an obligation to refer the question to the CJEU (Article 267 (3) TFEU). The latter means that any national court or tribunal against whose decisions there is no judicial remedy under national law is obliged as a court of last instance to refer a question of European Union law to the CJEU if it is relevant to the outcome of a pending case (see Case C 99/00 Lyckeskog [2002] ECR I 4839, paragraphs 14 et seq., Case C-210/06 Cartesio [2008] ECR I-9641, paragraphs 75 to 79).

However, if the CJEU has already dealt with the point of law in question or if the correct application of European Union law is obvious (acte claire) a reference is not necessary. It is up to the domestic court to assess this necessity. The parties to the proceedings cannot compel a reference nor does European Union law provide a remedy for failure to make a reference (see Case 283/81 Cilfit and Others [1982] ECR 3415, paragraphs 6 et seq).