The Preliminary Reference Procedure and Questions of International and National Law

Abstract

It is common ground that whilst the European Court of Justice is the authoritative arbiter on the construction of Community law, it is not the primary enforcer thereof. Instead, the founding fathers of the Community opted for a system whereby enforcement of Community law was left, in the first place, to the Member State courts. Such a decentralized system of enforcement entails a risk of heterogeneous application of the law. In order to counter this, Article 234 of the EC Treaty provides for a scheme whereby the national courts may—and sometimes must—refer questions on Community law to the European Court of Justice for an authoritative and binding preliminary ruling, for the purposes of deciding a given main action. The importance of this preliminary ruling procedure within the Community’s legal order is difficult to overstate; not least when it comes to the operation of the internal market. Article 234 only vests in the European Court of Justice jurisdiction to rule on Community law that applies in the main action before the referring national