Procedures of the Court of Justice
Preliminary reference procedure: Obligation to make a preliminary reference
If questions concerning the interpretation of EU law arise in a pending case, all domestic courts are competent to make a reference (Article 267 (2) TFEU). References can only be made by courts of the Member States, but not by other bodies, e.g. private parties or administrative authorities. (Cf. Case C-53/03 Syfait; Case C 394/11, Belov).
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. (Case C-210/06 Cartesio, para. 88-98). The courts of last instance are 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 EU law to the CJEU if it is relevant to the outcome of a pending case. (Case C 99/00 Lyckeskog, para. 14 et seq.; Case C-210/06 Cartesio, para. 75-79).
In case C-416/17 Commission v France, the CJEU emphasised the importance of the national courts giving effect to Article 267 TFEU, which can eventually be interpreted as an obligation. In this particular case, the Commission inter alia successfully challenged the failure by the French Council of State to make a preliminary reference in a taxation matter.
However, if the CJEU has already dealt with the point of law in question or if the correct application of EU law is obvious (acte claire) a reference is not necessary. It is up to the domestic court to appreciate this necessity. The parties to the proceedings cannot compel a reference nor does EU law provide a remedy for failure to make a reference (Case 283/81 Cilfit and Others, para. 6 et seq.).