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

Lower courts have the power to refer questions on interpretation but they are not under any obligation to do so. Higher courts cannot limit this power if the lower court considers that a case pending before it requires a reference (see Case C-210/06 Cartesio [2008] ECR I-9641, paragraphs 88 to 98).

If there are well founded arguments before any national court for the invalidity of European Union law, it is incumbent upon it to stay proceedings and to make a reference to the Court for a preliminary ruling on the act’s validity. Domestic courts may never take a final decision in conflict with European Union law unless the CJEU has declared it invalid (see Case 314/85 Foto-Frost [1987] ECR 4199, C 461/03 Gaston Schul Douane-expediteur [2005] ECR I 10513, paragraphs 15 to 25, Case C-344/04 IATA and ELFAA [2006] ECR I-403, paragraphs 27 to 32).

The reference must include the legal and factual background of the domestic case as well as the questions of the national court. It should also indicate why the reply is considered necessary for the decision of the domestic case. The domestic court can also indicate its position on the questions of European Union law and propose a reply.

The reference will be translated into the 22 languages of the Court (23 as of 1 July). However, if the reference is longer than 20 pages of 1500 characters it is possible that it will only be translated into French, the working language of the CJEU, and summarised in the other languages.

The reference and the relevant translations or summaries will be sent to the parties before the domestic courts as well as to the interested parties mentioned in Article 23 of the statute of the CJEU, that is all member states, the Parliament, the Council and the Commission, as well as, in some cases the states of the EEA and the EFTA Surveillance Authority. They can submit observations in their own language with two months. The CJEU can convene a hearing.

In most but not all preliminary reference procedures there will be an opinion by an Advocate General that is published before the CJEU deliberates on the case. The CJEU can decide in chambers of three, five or fifteen judges as well as in plenary session. The judgment is translated into all 22 languages of the Court. However, if the Court decides by way of an order because the issues raised have already been addressed by earlier jurisprudence it is possible to limit the translation to the language of the domestic court.

The court can employ an accelerated procedure and – in certain areas – an even more accelerated urgent procedure. However, these procedures are used very rarely, and, up to now, have not been used in environmental cases. Normally, the CJEU expects the domestic courts to deal with any urgency by means of interim measures (see Order of 23 October 2009 in Case C-240/09 Lesoochranárske zoskupenie, paragraph 12).