The Preliminary Reference Procedure Before The CJEU: Cyprus Jurisprudence

The mechanism of the preliminary reference stands as one of the cornerstones of European Union law. It establishes a channel of judicial cooperation between the national courts of Member States and the Court of Justice of the European Union ("CJEU"), ensuring the uniform interpretation and application of EU law across all Member States. Understanding this mechanism, and in particular the conditions under which a Cypriot court may invoke it, is of considerable practical importance for any party appearing in proceedings that raise a question of EU law.

The jurisdiction of the CJEU to provide preliminary rulings is conferred by Article 267 of the Treaty on the Functioning of the European Union ("TFEU"), which provides that the Court shall have jurisdiction to give preliminary rulings concerning the interpretation of the Treaties and the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union. In Cyprus, this framework was transposed into domestic law by Article 34A of the Courts Law (Law 14/60). Article 34A (1) confers on any court before which a qualifying question arises the power to refer that question to the CJEU where it considers a ruling necessary in order to give judgment, while Article 34A (2), (3) and (4) mirror the obligation imposed by Article 267 TFEU on courts of final instance, requiring the Supreme Court of Cyprus when exercising its appellate jurisdiction, the Supreme Constitutional Court, as well as the appellate courts, to refer whenever a question of EU law arises and a ruling on that question is necessary for the determination of the case.

It is essential to appreciate that the CJEU's jurisdiction under Article 267 TFEU is confined to matters of EU law, that is, its interpretation and its validity, and extends neither to questions of national law nor to the compatibility of national legislation with EU law. As the Full Bench of the Supreme Court of Cyprus affirmed in Cypra Limited v. Republic of Cyprus (2013) 3 A.A.D. 305, Article 267 TFEU confers on the CJEU the power to interpret the Treaty but does not confer on it the power to apply that Treaty to the facts of any specific case. Nor does the CJEU function as an appellate court over national court decisions; its role is to provide national courts with the interpretive tools they require to resolve the disputes before them, while leaving the application of those tools to the facts squarely within the jurisdiction of the national judge. This boundary was reinforced in Theosavva Co Ltd v. Attorney General (2014) 1 A.A.D. 200, where the Supreme Court held that a request seeking a ruling on the compatibility of domestic legislation with EU law, rather than on the interpretation of EU law itself, had no proper place in the referral procedure and could not succeed.

1. When does a Cyprus Court Make a Preliminary Reference to the CJEU?

A preliminary reference may be made when genuine doubt arises as to the interpretation or the validity of EU law, and where that doubt is necessary to resolve the case before the national court. The CJEU confirmed this requirement in M.F. v J.M. (Case C 508/19, Grand Chamber, 22 March 2022), reiterating that the rationale for the referral procedure lies not in the formulation of advisory opinions on general or hypothetical questions, but in the indispensable need for the effective resolution of an actual legal dispute. EU law must also be applicable to the subject matter of the main proceedings; where a case is exclusively domestic in character and lacks any cross-border element, the CJEU will ordinarily decline jurisdiction.

The conditions under which a preliminary reference is justified have been developed through a rich body of Cypriot and EU jurisprudence. The Supreme Court of Cyprus, in Perikleοus v. Ellinas Finance Ltd and Others, Civil Appeal No. 283/2010, 10 March 2015, adopted the criteria articulated by MacPherson J in R v HM Treasury, ex parte Daily Mail and General Trust plc [1987] CMLR (2), p. 1, as the principal indicators that justify a referral. Those criteria, as applied in Cypriot jurisprudence, require that:

• the relevant facts of the case are not in dispute, so that the CJEU may interpret the EU law provision against a settled factual background;
• the legal point raised be substantially determinative of the case, meaning that the outcome of the proceedings must turn on the ruling sought;
• there be no Community authority precisely or closely in point, so that the question is genuinely novel or unresolved at the EU level; and
• the legal point and the case itself be advanced in good faith and without adverse motive, since the referral procedure is not an instrument of delay or procedural tactics.

The obligation or discretion to refer is not without limits, however, and well-established exceptions exist that reflect a pragmatic recognition that the procedure need not be invoked where the answer to a question of EU law is already sufficiently clear. The foundational authority on this point remains Srl CILFIT v. Ministry of Health, Case 283/81 [1982] ECR 3415, in which the CJEU set out three circumstances in which a national court, including one of final instance, is not required to make a reference. A reference is unnecessary where the disputed provision of EU law is neither important nor necessary for the national court's decision; where there is already clear and settled case law of the CJEU on the specific legal question before the national court; and where the correct application of EU law is so obvious as to leave no reasonable scope for doubt. The first of these situations gives rise to the doctrine of acte clair, while the third is complemented by the doctrine of acte éclairé, which applies where the question raised has already been examined in a materially identical context and answered by the CJEU. Both doctrines were affirmed by the Full Bench in President of the Republic v. House of Representatives (No. 5) (2017) 3 A.A.D. 327, most recently applied in Argyro Papatryfоnos v. Cyprus Asset Management Company Ltd, Civil Appeal No. E73/2024, 27 January 2025, and confirmed again in E.M. v. Central Authority / Attorney General of the Republic, European Arrest Warrant Appeal No. 8/2025, 19 January 2026.

1. Discretion, or Obligation to refer?

The distinction between lower courts and courts of final instance carries significant practical implications for practitioners appearing at different levels of the Cypriot judiciary. First instance courts enjoy an essentially unlimited discretion to refer questions to the CJEU but are under no obligation to do so. Moreover, the existence of case law from a superior national court that appears to answer the question which a first instance judge would wish to refer does not bind that judge and does not prevent a referral, as confirmed by the CJEU in Rheinmühlen Düsseldorf, Case 166/73. The CJEU reinforced this position in Puligienica Facility Esco SpA (PFE) v Airgest SpA, Case C 689/13, holding that a rule of national law cannot prevent a national court, where appropriate, from using that discretion.  Courts of final instance, however, are under a binding obligation to refer whenever a question of EU law arises that is necessary for its determination and that has not already been authoritatively resolved by the CJEU (Re Application for Extradition of Laverty and Others, Fugitive Extradition Request No. 3/21, 24 May 2022). If they refrain from doing so, the Member State concerned may be held liable for a breach of EU law. It should also be mentioned that a Judge may refer the case for a preliminary ruling even on their own motion, without the request from the parties (Rheinmühlen Düsseldorf).

• At which stage is a Preliminary Reference made?

The determination of the appropriate stage depends on factors related to the expenses and convenience of the trial, the assessment of which rests not with the CJEU but solely with the national court. That assessment is informed, in particular, by the consideration that the making of a preliminary reference has as its consequence the suspension of the national proceedings until the CJEU delivers its ruling, a practical reality that naturally counsels against premature referral. The CJEU's Information Note on References from National Courts for a Preliminary Ruling (2005/C143/01) accordingly recommends that the decision to refer be taken once the proceedings have reached a stage at which the court is able to determine both the factual and the legal framework of the question to be posed, a recommendation applied in Re Application for Extradition of Laverty and Others, Fugitive Extradition Request No. 3/21, 24 May 2022.

The matter was further addressed in ZOLOTUKHIN v. SC Blue Air, Action No. 189/2016, 3 September 2018, where the court affirmed that there is no procedural prohibition on making a reference at any stage of the proceedings, whether during an interlocutory application or after the reception of evidence on the merits. What renders a national court functus officio in relation to a reference, and thus deprives it of the power to refer, is the delivery of a final judgment that conclusively resolves all the issues in the dispute. As the court in ZOLOTUKHIN expressed it, the concept of a preliminary reference is associated with the fact that the delivery of the court's final decision in the context of the proceedings remains pending; it is not necessarily associated with whether or not evidence on the merits has been received, or judicial findings of fact have been made.

In conclusion, the preliminary reference mechanism serves as an indispensable bridge between national legal proceedings and the broader framework of EU law. It operates not as a procedural luxury or a tactical device, but as a genuine instrument of judicial cooperation, ensuring that the rights and obligations arising under EU law are interpreted consistently and authoritatively across all Member States. For practitioners appearing before the Cypriot courts in cases that engage questions of EU law, a thorough command of this mechanism, its conditions, its limits, and its procedural requirements, is essential.

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.