A national court may refer a question of law to the European Court of Justice (ECJ) in the context of the preliminary ruling procedure under Article 267 TFEU. However, this submission to the ECJ is subject to certain conditions. We explain the conditions and how the individual can assert legal protection if the submission to the ECJ is refused by a national court.

1. Submission to the ECJ

1.1. Function of submission to the ECJ

The preliminary ruling procedure is governed by Article 267 TFEU. According to that provision, in the context of a dispute pending before a court of a Member State, the CJEU may resolve a question concerning the interpretation or validity of EU law which is relevant to the outcome of that dispute.

This procedure is required according to the conception of the European Union. The reason is that both the courts of the Member States and the Court of Justice apply Union law. They may come to divergent decisions and interpretation of the Union standard. It is therefore necessary for a central European court to ensure a uniform interpretation and validity assessment. The preliminary ruling procedure thus prevents Member States from arriving at a case-law which is incompatible with EU law.

In addition, the procedure strengthens legal protection. The preliminary referral procedure allows individuals to enforce Union law before a national court. However, he cannot force the submission to the ECJ.

1.2. Expiry of submission to the ECJ

The preliminary ruling procedure is characterised by cooperation between the ECJ and the courts of the Member States. Where a court of a Member State encounters difficulties in examining relevant questions of EU law in the course of proceedings, it shall have the power to request clarification of those questions from the ECJ. In certain cases, the court of the Member State is even obliged to refer the matter to the ECJ. Only after the ECJ has established the standards of interpretation under EU law in its preliminary ruling judgment does the court of the Member State apply the EU law rule interpreted by the ECJ to the facts at issue. In summary, this is an interim procedure in the context of national litigation with the involvement of the ECJ.

The ECJ will then rule on the question addressed to it by a court of a Member State. The structure of the decision shall depend on whether the question referred is a question of interpretation or a question of validity. If there is a question of interpretation, the ECJ shall establish detailed interpretation criteria in the reasons for the decision and explain them. This is intended to enable the referring national court to examine the compatibility of a national standard with EU standards. In the spirit of the judgment, the ECJ specifies the interpretation of the corresponding EU standard. However, the application of those interpretative criteria to the facts under consideration lies solely with the referring court.

Where the question referred concerns a validity question, the ECJ shall examine the legality of the act of the European Union for its compatibility with higher-ranking (primary) Union law. In the spirit of the judgment, the ECJ establishes the validity or invalidity of the act submitted.

1.3. Legal effect of the preliminary ruling

The preliminary ruling becomes final and is therefore binding on the referring court. This binding effect extends not only to the court in the main proceedings but also to all courts which have to rule in the same case.

However, the courts are empowered to refer the matter to the ECJ again in order to obtain further clarification. Further clarification may include, for example, the scope or the temporal effect of a declaration of invalidity.

The preliminary ruling may also have effect beyond the main proceedings. However, a distinction must be made. The judgment also has binding effect outside the main proceedings if the Court of Justice finds that an organ act is invalid, so-called erga omnes effect. As a result, this corresponds to the annulment under Article 264 TFEU. If, on the other hand, the ECJ establishes the validity of an organ act, the judgment does not have a general binding effect. It is not excluded that new aspects not yet included in the examination may lead to a different assessment and therefore justify or require a new submission.

On the other hand, preliminary rulings on questions of interpretation have only limited erga omnes effect. The courts of the Member States are obliged to apply EU law as interpreted by the ECJ. However, they can submit the same question of interpretation again. Only an arbitrary departure from the preliminary ruling is excluded.

Interpretation and validity judgments are basically ex tunc, i.e. retroactive. However, the Court has the power to restrict the effect of the judgment in the preliminary ruling procedure for the past. However, this time limitation must be expressly derived from the judgment.

2. acceptability of the submission to the ECJ

2.1 Jurisdiction of the ECJ

The referral to the ECJ is acceptable if the preliminary ruling procedure is admissible. The ECJ is competent to decide on the request for a preliminary ruling. However, it may delegate competence to the European Court of Justice in specific matters laid down in the Statute. However, this has not yet been laid down in the Statute.

2.2 Eligible questions

National courts may, on the one hand, refer questions to the ECJ concerning the interpretation of the TEU and TFEU. Therefore, the questions referred may relate to the interpretation of all standards of Union law. This includes standards of primary and secondary Union law, including all general legal principles and customary Union law. On the other hand, they shall be entitled to submit observations concerning the validity and interpretation of the acts of the Union institutions, bodies, offices and agencies. Questions concerning the interpretation of international agreements concluded by the Union with third countries or other international organisations are also possible.

Questions concerning the compatibility of a national act with EU law are, however, prohibited. The same applies to questions concerning the validity of primary legislation.

The courts of the Member States are entitled to submit a request for a preliminary ruling. These are independent bodies set up by or under a law under EU law, which, within the framework of a mandatory jurisdiction, decide legal disputes using legal norms.

The right of reference of the national court shall exist in the event of doubts as to the validity or interpretation of EU law. In addition, in the opinion of the referring national court, the question referred must be relevant to the outcome of the proceedings before it. In the specific case, therefore, it must depend on how EU law is to be interpreted or whether a legal act of the Union is valid. General or hypothetical questions are not allowed.

However, the ECJ only examines whether the preliminary ruling procedure is abused. Whether and at what stage of the procedure a preliminary ruling is necessary is at the discretion of the court entitled to submit. A preliminary question can therefore also be asked within the framework of interim legal protection.

2.3. No apparent authority to bring an action for annulment

Where an action for annulment can be brought, the person concerned shall be bound by the time limit laid down in Article 263(6) TFEU. If this time-limit for bringing an action has expired, the person concerned shall be entitled to validity. This persistence can be circumvented by the preliminary ruling procedure. The person concerned could have the time limit for bringing an action for annulment elapsed and contest the validity of the Union rules in the proceedings concerning the national enforcement act relating to the EU act. If the national court refers the question to the ECJ for validity checks, the circumvention of the durability effect threatens.

Therefore, the ECJ made the eligibility of the relevant draft validity conditional on the fact that the party to the main proceedings before the national court, which invokes the invalidity of the EU act, was not manifestly entitled to bring an action for annulment. In this respect, the decisive factor is the clarification of the admissibility conditions of the action for annulment by the EU courts.

3. Obligation to submit to the ECJ

3.1. Existence of an obligation to submit to the ECJ

Only in certain cases is the national court obliged to submit a question to the ECJ. A requirement for a preliminary ruling exists where the decision can no longer be contested by appeals under national law or where the court considers an EU secondary act to be ineffective and therefore does not wish to apply it or, where it intends to annul, disapply or suspend an act of a Member State which in turn implements Union law. In addition, there are constitutionally justified submission obligations in Germany. Therefore, courts of last instance, in particular the Bundesfinanzhof, are always obliged to submit.

3.2. Derogations from the obligation to submit

However, there are also exceptions to the submission obligation. Even if the conditions of the obligation are met, a court of a Member State does not have to refer the matter to the ECJ if the question raised has already been submitted in a similar case and has been answered by the ECJ or, if there is established case-law under EU law on the matter, which clarifies the question in question. This applies even if the disputed questions are not completely identical and regardless of the type of proceedings in which the case-law has been formed. Furthermore, there is no obligation to refer the matter if the correct interpretation of EU law is so obvious that there is no room for reasonable doubt as to the decision of the question put and neither the Court of Justice itself nor the other courts of the Member States would doubt that interpretation. However, there is a danger of divergences and thus a duty to refer the matter, if a large number of courts have already submitted on this problem.

3.3. Violation of the obligation to submit

The breach of the obligation to submit a preliminary ruling by a national court constitutes a breach of the TFEU. This can be reprimanded by the Commission or other Member States before the ECJ through infringement proceedings.

4. Legal protection of the taxable person

If the national court does not submit the question to the ECJ despite an obligation, the taxpayer can complain. Internally, the constitutional claim to the legal judge is violated. This violation can be reprimanded by way of a constitutional complaint to the Federal Constitutional Court. This possibility of legal protection is important since the parties in the main proceedings do not have a direct right of recourse to the ECJ.