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.


  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.

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