Austria: The Jewel In The Crown (1)

Pursuant to Article 267 of the Treaty on the Functioning of the European Union ("TFEU"), the Court of Justice of the European Union ("CJEU") shall give preliminary rulings, at the request of courts or tribunals of the Member States, on the interpretation of Union law or the validity of acts adopted by the institutions.

The procedure in Article 67 TFEU operates as the keystone to ensure coherence and unity in the interpretation and application of EU law; a fundamental mechanism of the EU legal system. Indeed, the preliminary reference procedure has been regarded as the "jewel in the crown" of the CJEU's jurisdiction.2

The statistics confirm: In 2017, 79 new cases were registered before the CJEU over the course of that year, a record in the history of the institution. Out of these cases, 533 were requests for preliminary rulings – a 13 % increase over the previous record set in 2016.3

While there is no exhaustive list of principles set out in the Treaties of the EU or elsewhere, the essential characteristics of the preliminary reference procedure have been developed in the CJEU's case law. The CJEU also assists by giving recommendations to the national courts. On 20 July 2018, the CJEU updated its recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings ("Recommendations").4

The CJEU's Recommendations are designed to serve as a reminder of the essential characteristics of the preliminary ruling procedure and the factors to be considered by the national courts and tribunals before making references to the CJEU for a preliminary ruling.

Despite the legal nature, there can be little doubt that the Recommendations must be considered by a national court before referring a question to the CJEU. Moreover, although the Recommendations are addressed to national courts, the parties of a litigation who bring a question of EU law to the attention of the national court must also take into account the content of the Recommendations. This holds particularly true where a party pleads that a specific legal question warrants a preliminary ruling and asks, on that basis, that the national court make a reference to the CJEU for a preliminary ruling.

Essential characteristics

In accordance with the CJEU's Recommendations, the essential characteristics of the procedure in Article 26 can be divided into several categories, three of which are set out below:

First, as to "the originator of the request for a preliminary ruling":

  • The CJEU gives a preliminary ruling on the interpretation or validity of EU law exclusively at the initiative of the national courts and tribunals, regardless of whether the parties to the main proceedings have expressed the wish that a question be referred to the CJEU. The national court or tribunal before which a dispute has been brought shall determine, in light of the circumstances of each case, both the need for a request for a preliminary ruling to enable it to deliver a judgment and the relevance of the questions which it submits to the CJEU.
  • Status as a court or tribunal is interpreted by the CJEU as a selfstanding concept of EU law. The CJEU considers a number of factors, such as whether the body making the reference is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent. Indeed, in Achmea (C284/16) the CJEU decided that an investment treaty tribunal constituted under the UNCITRAL Rules does not qualify as a "court or tribunal of a Member State" that is competent, pursuant to Article 267 TFEU, to request preliminary rulings on the interpretation of EU law from the CJEU.5
  • Where a question concerning the interpretation of the treaties is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the CJEU to give a ruling thereon. Conversely, where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal must request the CJEU to give a ruling thereon.6

Second, as to the "subject matter and scope of the request for a preliminary ruling":

  • The request for a preliminary ruling must concern the interpretation or validity of EU law, not the interpretation of rules of national law or issues of fact raised in the main proceedings. In other words, the CJEU can give a preliminary ruling only if EU law applies to the case in the main proceedings. It is essential that the referring court or tribunal sets out all the relevant matters of fact and of law that have prompted it to consider that any provisions of EU law may be applicable to the case.
  • Although the CJEU necessarily considers the legal and factual context of the dispute in the main proceedings, as defined by the referring court or tribunal in its request for a preliminary ruling, it does not itself apply EU law to that dispute. According to settled case law, the CJEU confines itself to inferring the meaning of the EU law provisions in question from their wording and spirit. It is then for the national courts alone to apply the provisions of EU law so interpreted, considering the facts and law in the case it must decide.7

Third, as to "the appropriate stage at which to make a reference for a preliminary ruling":

  • A national court or tribunal may submit a request for a preliminary ruling to the CJEU as soon as it finds that a ruling on the interpretation or validity of EU law is necessary to enable it to give judgment.
  • The CJEU must have access to all the information that will enable it both to assess whether it has jurisdiction to give a reply to the questions raised and, if so, to give a useful reply to those questions. Therefore, it is necessary that a decision to make a reference for a preliminary ruling is taken when the national proceedings have reached a stage at which the referring court or tribunal is able to define, in sufficient detail, the legal and factual context of the case in the main proceedings, and the legal issues which it raises.8

Essential elements of a request for a preliminary ruling

In addition to the essential characteristics of a preliminary reference procedure, the Annex to the CJEU's Recommendations sets out the essential elements of a request for a preliminary ruling. These are: (i) the referring court or tribunal; (ii) the parties to the main proceedings and their representatives; (iii) the subject matter of the dispute in the main proceedings and the relevant facts; (iv) the relevant legal provisions; (v) the grounds for the reference; and (vi) the questions referred for a preliminary ruling.9

As noted in the introduction, the Annex shall determine the form and content of a national court's request for a preliminary ruling. Accordingly, it does not, in principle, directly apply to the parties' pleadings before the national court. However, a party who asks the national court to make a reference to the CJEU for a preliminary ruling is well advised to structure its pleadings in light of the CJEU's Recommendations. After all, the structure envisaged by the Recommendations will allow a party to comprehensively submit that a specific question warrants a preliminary ruling and, ultimately, to assist the national court in its efforts to draft a request and formulate relevant questions to be referred to the CJEU.

Footnotes:

  1. Craig and De Búrca, EU Law, Text, Cases and Materials, Sixth Edition, p. 464.
  2. Craig and De Búrca, EU Law, Text, Cases and Materials, Sixth Edition, p. 464.
  3. Press Release of the CJEU dated 23 March 2018; available under this link (accessed on 2 November 2018)
  4. 2018/C 257/01.
  5. Achmea, C-284/16, ECLI:EU:C:2018:158, para 49.
  6. Recommendations, paras 3-7.
  7. Recommendations, paras 8-11.
  8. Recommendations, paras 12-13.
  9. Annex to the Recommendations, points 1-6.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
 
Email Address
Company Name
Password
Confirm Password
Position
Industry
Mondaq Newsalert
Select Topics
Select Regions
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions