Preliminary Rulings Research Articles

Court of Justice

This overview highlights: (i) the ECJ State aid decision in the case of Apple – Commission v. Ireland and Others (C-465/20 P); (ii) the ECJ State aid decision on the UK CFC Group Financing Exemption – United Kingdom v. Commission and Others, ITV v. Commission and Others and LSEGH (Luxembourg) and London Stock Exchange Group Holdings (Italy) v. Commission and Others (Joined Cases C‑555/22 P, C‑556/22 P and C‑564/22 P); and (iii) the publication of important amendments to the rules of procedure related to a transfer of jurisdiction for preliminary rulings to the General Court.

Article: Preliminary Procedures at the General Court: More than Meets the Eye?

From 1 October 2024, the General Court will have jurisdiction to hear preliminary rulings in a number of specific areas of EU law. These include VAT, excise duties, customs and tariff classification, compensation and assistance to travellers, and greenhouse gas emissions trading. In this article, the author discusses and evaluates this reform of the preliminary ruling procedure. Among other things, the article discusses the extent to which the reform contributes to reducing the workload of the Court of Justice of the European Union (CJEU). It is further argued that the reform could potentially go beyond a merely practical, technical reallocation of preliminary ruling powers. Any future extension of the General Court’s preliminary ruling jurisdiction to other jurisdictions will potentially fundamentally change the judicial structure of the EU and put the CJEU even more on the track of a constitutional court.

Admissibility of Requests for a Preliminary Ruling in the Case Law of the CJEU on Judicial Independence

In recent years, the CJEU has experienced a significant increase in requests for preliminary rulings on the interpretation of Article 19(1) TEU in the area of judicial independence. However, not all requests concerning this provision have been deemed admissible by the CJEU. This article examines the underlying principles of the preliminary ruling procedure under Article 267 TFEU that guide the CJEU in accepting or rejecting requests from national courts in this critically important area of EU law. It focuses on the concept of ‘court or tribunal’ within the meaning of Article 267 TFEU and the ‘necessity’ of the Court’s ruling.

The Dutch Preliminary Ruling Procedure in the Light of the European Directive on Representative Actions

Abstract Dutch civil law allows courts of first and second instance to refer preliminary questions to the Supreme Court. In mass claim disputes there may be a concurrence between the safeguards of the preliminary ruling procedure and the protection provided by Directive 2020/1828 on representative actions for the protection of the collective interests of consumers. This working paper addresses several issues regarding this concurrence. These include legal certainty, the influence of non-parties, the costs and the duration. The authors come to the conclusion that the preliminary ruling procedure can be very useful in mass claim disputes, albeit that both the lower courts and the Supreme Court need to align their practice more closely with the safeguards of the Directive on a number of points. These findings may be relevant for other European jurisdictions that recently introduced a preliminary ruling procedure, or that are about to insert a preliminary ruling procedure in their civil procedural law system.

The ECJ Preliminary Reference Procedure: Two to Tango?

This note comments on the dialogue and cooperation between the ECJ and the referring court in the context of a preliminary ruling procedure. The author discusses how the ECJ and the referring court can influence and improve this relationship. Important elements of dialogue include questions, answers and process. The author discusses these elements in the context of the preliminary ruling procedure, addressing possible reasons for the criticism that has been levelled against ECJ preliminary rulings. Among other things, the author suggests allowing the referring court to be present and speak at the oral hearing of a case before the ECJ.

Why Do So Few Preliminary Questions Come From Czechia?

Abstract Although a substantial part of the body of laws of an EU Member State is founded upon European Union law and norms, the number of preliminary questions emanating from courts in the Czech Republic appears to be disproportionately low compared to other similar EU Member States. The aim of this article is to analyse and outline possible reasons for the lack of preliminary questions coming from the Czech Republic. In her analysis, the author identifies three possible factors underpinning the issue. These factors include attitudes towards the EU and a general lack of understanding of the relevance of EU laws and norms; the role of preliminary rulings; and the perception and recognition of courts. An integral part of this analysis is a critical commentary on the shifts in how courts and tribunals are perceived within the meaning of Art. 267 TFEU. Lastly, the author offers guidance to fellow legal professionals and academics for interpreting EU norms.

The Unfolding Story of Judicial Dialogue in the EU: The Coercive and Persuasive Motives Behind the Participation of Belgian Highest Courts in the Preliminary Ruling Procedure

Abstract The story of national judges’ participation in the process of dialogue with the Court of Justice of the European Union (ECJ) pursuant to Article 267 TFEU is a well-known one. There have been many scholarly efforts to explain and theorize the—lack of—participation of national courts in the mechanism. Indeed, various constitutional, institutional, procedural, cultural, political, and individual factors are pointed out to explain this engagement. Yet, it may come as a surprise that still much remains unknown. The available empirical data concerning the potential causes of the national judges’—non—participation is limited to a number of EU member states and is mostly confined to lower courts judges. It is the aim of this Article to partly fill the void in the literature and to provide novel empirical data gained in the course of semi-structured interviews among judges and court référendaires of three Belgian highest courts. The interviews provide insight into the possible factors driving concerned national judges when deciding (not) to refer preliminary questions, including the role and significance of the obligation to refer which is to be found in Article 267 TFEU and the Cilfit-criteria.

Suspension of the Main Proceedings and Referral for a Preliminary Rul-ing. Gloss to the Judgment of the CJEU in Case C-176/22, Bk And ZhP, of 17 May 2023

The preliminary reference as an appeal of the Court of Justice of the European Union presents many complexities and complicated interpretations over time, given that we have a national judge in the scene of the appeal process, often creating problems but also solutions for greater effectiveness of the law of the European Union and respect for domestic law. The preliminary ruling aims to resolve disputes between internal jurisdictions and evaluate compatibility with EU law, especially in the national procedural sector. Ensuring a postponement of the EU and, above all, protecting the rights of individuals in a concrete, complete and effective way is still questionable research, not so much on a theoretical level but also on a procedural one.

Procedural autonomy of national courts acting as EU trade mark courts—how far can the effectiveness of unitary character of EUTMs be ensured?

Abstract The Court of Justice of the European Union has recently rendered preliminary rulings in two separate European Union trade mark (EUTM) infringement cases, Gemeinde Bodmann-Ludwigshafen (C-256/21) and LM v KP (C-654/21), confirming that a counterclaim for invalidity in an EUTM infringement proceedings is independent in scope and the outcome from the infringement action, reflecting the principle of procedural autonomy of national courts acting as EUTM courts.

Preliminary Rulings before the General Court: What Judicial Architecture for the European Union?

Preliminary Rulings before the General Court: What Judicial Architecture for the European Union?

National Courts Proposing Answers to the Questions Referred for Preliminary Ruling

In the preliminary ruling procedure under Article 267 TFEU, national courts refer questions of interpretation of EU law to the Court of Justice of the EU. At times, national courts not only ask questions but immediately propose answers to those questions. Recently, this kind of behaviour of national courts has attracted increased scholarly attention. In this article, I focus on these situations in two aspects. First, I analyse a selected set of references for preliminary ruling received by the Court of Justice between 2018 and 2020 to see how often the Court gets to the same answers to the referred questions as proposed by national courts. Second, I reflect on the factors that could make an impact on this practice. Among them are judicial resources and specialisation in EU law-related matters on the one hand, and values and interests that are promoted by specific answers on the other. More specifically, it appears that when national courts take into consideration and invoke most or all relevant arguments, as well as when they propose integrationist outcomes, the Court of Justice tends to reach the same answers they suggest. These observations in the end lead to a number of important questions about the national courts’ enforcement and interpretation of EU law and the viability of their role of “EU courts” more broadly.

The Refusal of the Constitutional Court of Romania to Accept Mandatory Mediation: Request for a Preliminary Ruling to the Court of Justice of the European Union- Case C-658/23, Investcapital

The Refusal of the Constitutional Court of Romania to Accept Mandatory Mediation: Request for a Preliminary Ruling to the Court of Justice of the European Union- Case C-658/23, Investcapital

Court of Justice of the European Union and Ukrainian Legal Order: Some Pre-accession Considerations

As the European Union candidate country (hereinafter the EU), Ukraine is one step away from becoming an EU Member State. From this point on, the country will be subject to the influence of EU institutions, including the Court of Justice of the European Union (hereinafter the CJEU). It is suggested that upon the accession of Ukraine, the CJEU’s impact will be comparable to the influence on legal orders of other EU Members States provided necessary preparatory steps, such as training for judges, are taken. It is established that the main functions of the CJEU are to interpret and ensure the uniform application of EU law in each EU Member State, to ensure compliance with EU law by EU countries and institutions, to ensure respect for the rights and freedoms of individuals, to provide clarifications to national courts, and to promote “positive integration” and “negative integration” of EU Member States. With respect to the above-mentioned functions, it is argued that the CJEU will become an effective tool for Ukraine after it accedes to the EU. It will facilitate the harmonization of national legislation with EU standards through the application of precedents by national courts, influence the activities of legislative bodies, and help prevent future complaints by becoming an additional “quasi-supervisory” body in Ukraine. It will also provide interpretation of the EU law at the request of national courts through the preliminary rulings and procedures, protecting human rights and freedoms by enabling individuals to apply to the CJEU for protection. At the same time, arguably, Ukraine will also impact the functioning of the CJEU by increasing the caseload and appointing judges from Ukraine as well as potentially Advocate-General. Given these potential implications, certain preparatory actions, like preparing a cadre reserve, may be considered at the present moment. Finally, the authors argue that even before Ukraine’s accession, the CJEU has an indirect impact on the Ukrainian legal order. It is suggested that constitutional amendments, as well as certain institutional changes like the establishment of an impartial judicial system and empowering a Ukrainian state body with powers to execute CJEU decisions, will need to take place prior to the accession, which is a demonstration of the CJEU’s indirect influence.

The right to translation in the criminal procedure and the meaning of essential documents – three recent cases of the European Court of Justice in the field of criminal cooperation between Member States

The case note concerns three preliminary rulings of the European Court of Justice (hereinafter referred to as ECJ). Case C-242/22 PPU TL, C-338/20 Prokuratura Rejonowa Łódź-Bałuty and case C-278/16 Sleutjes each concerned the right to translation in the criminal procedure and legal remedies in the event of not providing that right. Thus, the basis of adjudication of the cases was Directive 2010/64/EU of the European Parliament and of the Council on the right to interpretation translation and in the criminal proceedings. The case note sheds light on the deficiencies of the Directive which are the consequences of the legislative technique applied in this legislative instrument, namely that Member States retain great discretion in implementing its often-vague regulations on the right to translation. However, through the preliminary ruling procedure, the ECJ clarified the meaning of the essential document which is subject to translation according to the Directive, found that a final decision shall be considered a judgement even if formally it is not, and finally, it set out the essential parts of a judgement or other decision that are subject to translation for the purpose of safeguarding the right to a fair trial.

Preliminary rulings before the General Court: What judicial architecture for the European Union?

This contribution critically examines the implications of the Request submitted by the Court of Justice with a view to amending Protocol No. 3 on the Statute of the Court of Justice of November 2022, which suggested the General Court be given the jurisdiction to hear and decide questions referred for a preliminary ruling under Article 267 TFEU. The key argument is that the structural consequences of the Court´s Request for the judicial architecture of the European Union go well beyond another mere technical (re)arrangement of a head of competence within Article 256TFEU. If implemented – and potentially further expanded in the future by transferring jurisdiction on preliminary rulings in other specific areas to the GC – the structure of the Union judiciary and the preliminary ruling procedure itself is bound to change significantly. preliminary rulings, General Court, CJEU reform, Article 256 TFEU

Make It Stringent: A Plea for an Unfair Terms Regulation

The Unfair Terms Directive (UTD) is one of the most important pieces of EU private law, yet its understanding and implementation in the Member States is quite diverse. Despite the abundance of preliminary rulings on the Directive, the Court of Justice of the European Union (CJEU) has not managed to bring uniformity into its interpretation. The main reason is the legislative form chosen, which is that of a directive, allowing Member States very wide discretion in transposing its rules into their national law. This has given rise to sharp differences between Member State laws. The result is uncertainty, legal fragmentation, and an uneven playing field in the Union.To remedy this situation, we suggest a recast of the UTD and its transformation into a regulation. This would have several benefits. First, the scope, depth and the effects of unfair terms control would be the same in all Member States. Second, the Court of Justice of the European Union would no longer have to take account of the complex background of the different national laws when responding to references for preliminary rulings; instead, it could directly declare a certain clause as being incompatible with the Regulation and decide on its consequences. Third, the Annex of the Directive could be made binding, which would further enhance legal certainty and the effectiveness of the control. Finally, as the Regulation would fully harmonize the standard of unfair terms control, with the result that clauses compatible with it could be used throughout the Union, without any risk of running afoul of national law. This would give a boost to the integration of the Internal Market.

Make It Stringent: A Plea for an Unfair Terms Regulation

The Unfair Terms Directive (UTD) is one of the most important pieces of EU private law, yet its understanding and implementation in the Member States is quite diverse. Despite the abundance of preliminary rulings on the Directive, the Court of Justice of the European Union (CJEU) has not managed to bring uniformity into its interpretation. The main reason is the legislative form chosen, which is that of a directive, allowing Member States very wide discretion in transposing its rules into their national law. This has given rise to sharp differences between Member State laws. The result is uncertainty, legal fragmentation, and an uneven playing field in the Union.To remedy this situation, we suggest a recast of the UTD and its transformation into a regulation. This would have several benefits. First, the scope, depth and the effects of unfair terms control would be the same in all Member States. Second, the Court of Justice of the European Union would no longer have to take account of the complex background of the different national laws when responding to references for preliminary rulings; instead, it could directly declare a certain clause as being incompatible with the Regulation and decide on its consequences. Third, the Annex of the Directive could be made binding, which would further enhance legal certainty and the effectiveness of the control. Finally, as the Regulation would fully harmonize the standard of unfair terms control, with the result that clauses compatible with it could be used throughout the Union, without any risk of running afoul of national law. This would give a boost to the integration of the Internal Market.

The Role of Judicial Associations in Preventing Rule of Law Decay in Romania: Informal Communication and Strategic Use of Preliminary References

AbstractThis Article explores the manner in which, faced with the rule of law crisis generated by the 2017–2019 national legislative reforms, the Romanian judicial associations, organized as NGOs, have fulfilled their declared purpose of safeguarding judicial independence. By relying on effective communication tactics—including international networking and lobbying or informal discussions with high-level EU representatives—coupled with a strategic use of preliminary references, they have shed light on some of the most sensitive elements of the Romanian context, garnering both internal and international support in the process. In particular, by taking advantage of the CJEU’s increased willingness to engage with questions concerning the rule of law and the organization of the national judicial systems, the Romanian judicial associations have managed to design strategies capable of triggering preliminary rulings on the most heated and politically charged questions concerning the judiciary. This Article seeks to highlight the specific features and informal elements of such strategies.

Preliminary Ruling Requested from ECJ on Dividend Withholding Tax Due by UK Insurance Companies

In this note, the author comments on the recent request from the Court of Appeal of ‘s-Hertogenbosch for a preliminary ruling from the ECJ on the imposition of a 15% dividend withholding tax on dividend distributions to UK insurance companies on unit-linked policies in circumstances in which no withholding tax was due on payments to domestic pension funds.

The Danish Supreme Court’s Decisions on Withholding Tax on Dividends and Interest

In this article, the author discusses the final decisions from January and May 2023 of the Danish Supreme Court in the Danish beneficial ownership cases. The Supreme Court ruled on the consequences of the ECJ preliminary rulings but also took a position on questions of principle on the interpretation of tax treaties and domestic Danish tax law. The Supreme Court ruled that the Danish companies were liable for Danish withholding tax.