ERA – Academy of European Law “The anti-discrimination directives 2000/43 and 2000/78 in practice” Trier march 2010 *** « The role of the national judge and the prelimary ruling procedure » (Daniele P. Domenicucci – Legal secretary, EU General Court)

The preliminary ruling system Introduction (I) The preliminary ruling procedure is essential for the preservation of the EU character of the law established by the Treaty and has the object of ensuring that in all circumstances this law is the same in all MS of the EU Art. 267 has been of seminal importance for the development of EU law: it is through preliminary rulings that ECJ has developed concepts such as “direct effect” and “supremacy” of the EU law 6318 references for a preliminary ruling / cases ( ) 767 cases pending as at / 396 references for preliminary ruling The preliminary ruling procedure is inspired by the national mechanism of review of constitutionality Article 267 does not envisage contentious proceedings designed to resolve a dispute, but prescribes a procedure whose aim is to ensure a uniform interpretation of Community law by cooperation between the ECJ and the national courts Cooperation between national courts and the ECJ: the ECJ judgement has a preliminary nature, with reference to both its chronological scope and its functional meaning

Introduction (II) OBJECTIVS  Ensure the utmost uniformity in the interpretation of the EU law and establish for that purpose effective cooperation between the ECJ and national courts  Ensure the uniform application of the EU law  Ensure an indirect way of testing validity of EU action for conformity with EU law (often is the only mechanism whereby private applicants may contest the legality of EU norms = i.e. enables challenges to regulations via the national courts)  Ensure an indirect way of ruling on compatibility of national law with EU law

2. Subject-Matter of preliminary ruling (I) Artt. 19, para. 3, (b), TEU e 267 TFEU : The Court of Justice of the EU shall give preliminary rulings, at the request of courts or tribunals of the MS, on the interpretation of Union law or the validity of acts adopted by the institutions, bodies, offices or agencies of the EU (not national acts!) Preliminary ruling on interpretation  Q Questions concerning the interpretaton of the Treaty and of any act (including « atypical » acts) of institutions, bodies, offices or agencies of the EU (secondary law) Preliminary ruling on the « validity » QQuestions concerning the validity and effectiveness of (only) secondary law (that is, all act subject to appeal under Article 263 TFEU)

2. Subject-Matter of preliminary ruling (II) Essential element: the existence of a question and the existence of a real (non ficticious) conflicting interpretation (or a conflicting assessment on the validity), relevant for the decision Procedure “between court” (“from court/tribunal to Court”) (the Court judgment provides the national court the legal principle for the resolution of the dispute, facilitating him to resolve the dispute)

2. Subject-Matter of preliminary ruling (III) Preliminary ruling on the « validity » Increased importance for private applicants because of the Court’s narrow construction of the standing criteria under Art. 263 TFEU (often is the only mechanism whereby private applicants may contest the legality of EU norms)  The validity of all acts of EU Institutions, bodies, offices or agencies of the EU may be reviewed in the context of a reference for a preliminary ruling irrespective as to what they are called and whether or not they have direct effect (even non-binding acts)  Individual acts : a natural or legal person (and MS) who undoubtedly has the right under Art. 263 TFEU to seek the annulment of a EU act may not plead the illegality of that act in subsequent proceedings before the national courts  Acts excluded from review : the Treaties themselves ; all other rules of constitutional rank ; the preliminary rulings themselves (but it does not preclude the ECJ from ruling on the validity of the same act in a later judgement)

3. The « court or tribunal of a member State » within the meaning of Art. 267 TFEU A body is a court or tribunal for the purposes of the Art. 267 whether:  It is established by law  It is permanent  Its jurisdiction is compulsory  Its procedure is inter partes  It applies rules of law  It is independent

4. The court or tribunal of a MS (i) may request the Court to give a ruling or (ii) shall bring the matter before the Court (ratio) National courts against whose decisions a judicial remedy exist (matter of national law) The court or tribunal (of last resort) against whose decisions there is no judicial remedy (highest courts; no remedy available against the decision of a lower court) May request the Court to give a ruling Duty to make a preliminary reference (limits)

5. Limits set to the duty to request a preliminary ruling The courts are not obliged to refer to the ECJ a question concerning the interpretation of EU Law [or the validity of an act of EU Law] raised before them if : the question is not relevant (or identical with a question which has already been the subject of a preliminary ruling in a similar case) the answer can be clearly deduced from the case-law, irrespective of the nature of the proceedings which led to those decisions (“acte éclairé” doctrine) the correct application of EU Law may be so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved (the national court must be convinced that the matter is equally obvious to the courts of the other MS and to the ECJ (“acte clair” doctrine) - (prevent from abusing the doctrine)

6. Obligation to request a preliminary ruling praeter legem: invalidity of a EU act ECJ, Case 314/85 Foto-Frost (Art. 267 TFEU has a lacuna) When a national courts not subject to the third para. of Art. 267 perceives that an act of a EU Institution is invalid, it may not make such a finding itself, but must seek a preliminary ruling thereon from the ECJ No obligation to request a preliminary ruling when it considers the validity of a EU act. In this case, it may reject the grounds in support of invalidity and conclude that the measure is completely valid

7. Enforcement of the obligation to request a preliminary ruling: sanctions for non-compliance No remedy available from the Court of Justice to parties to the main proceedings against a refusal of a court to make a preliminary reference.....But, through its national court’s refusal to seek a ruling, the MS has infringed Art. 267 TFEU : Infringement actions Claim for damages (Brasserie du pêcheur, 1991, e Köbler, 2003)

8. Sharing of functions and cooperation between the national court and the ECJ (I) The ECJ does not assess the compatibility of national legislation allegedly in breach with EU law. Instead, the ECJ provides the national court with the EU legal principles which facilitate it to assess such compatibility when deciding the main dispute. “(EU law and, more particularly,) Article X of Directive 2000/78, must be interpreted (as meaning that it does not preclude a national measure) precluding a provision of domestic law, such as that at issue in the main proceedings, which authorises/contains (setting a maximum age for..)” Preliminary ruling = indirect procedure on the compatibility of national legislation with EU law (effects similar to to those of a judgment under Article 258 TFEU)

8. Sharing of functions and cooperation between the national court and the ECJ (II) The ECJ does not assess the necessity or appropriateness of the referral, nor the relevance of the question. It has nonetheless declared inadmissible  Manifestly irrelevant questions for the resolution of the procedure a quo  Purely hypothetical questions  Questions within the context of a referral which does not provide sufficient legal and factual background  Questions raised within fictitious disputes

9. Effects of a preliminary ruling PRELIMINARY RULING ON INTERPRETATION  Binding on the national court (all courts and tribunals dealing ith the case) – it does not preclude the court to which the judgement is adressed (or another involved in deciding the case) from making a further reference for a PR  Outside the specific dispute : binding on other national courts and administrations PRELIMINARY RULING ON VALIDITY  Scope limited to the case under evaluation – effect erga omnes of the PR declaring an EU act invalid (declaration of invalidity = declaration of nullity under Article 263 TFEU)

10. Temporal effects  Ex tunc effects the interpretation simply express what was contained ab initio in the provisions and principles of EU law to which it relates  Limitation of temporal effects (general principle of legal certainty inherent in the EU legal order = no reliance may be placed in the provision as interpreted in order to support claims concerning periods prior to the date of ECJ judgement, except in the case of persons who have before that date brought the action before the national court)

11. Procedure in the case of a reference for a preliminary ruling (I) Written and (eventually) oral procedure  Order for reference made by a national court The written procedure  Translation of the order for reference into the other official languages. The Registrar of the Court notifies it to the parties to the main proceedings (i.e. all parties to the case, including any interveners), the MS and the Commission (notification to the Council or the ECB, if the act the validity or interpretation of which is in dispute originates from one of them, to the EP and the Council, if the act the validity or interpretation of which is in dispute was adopted jointly by those institutions)  Pubblication on the OJEU  The parties to the main proceedings, the MS, the Commission and, where appropriate, the EP, the Council and the ECB are entitled to submit written observations (within 2 months of the notification of the order for reference + 10 days for the distance)

11. Procedure in the case of a reference for a preliminary ruling (II) The oral procedure  Hearing (language of the case: language of the court which made the reference for a preliminary ruling)  Advocate general (possible) Opinion  Delivery of the judgment (order) ***  The Court send its ruling to the national court  National court’s final judgment (to be sent to the Court)