Short insight into the problems of the preliminary ruling system in the European Union

National judges apply Union law as an essential part of Member States’ law. They have primary
and standard jurisdiction for the application of Union law, but are required to cooperate with
Union judges for the preservation of legal unity by ensuring the uniform interpretation and
application of Union law, safeguarding legal redress for the individual and further development
through the means of the preliminary ruling procedure. It consists of interlocutory proceedings,
in which the national judge – not the individual– refers a question on Union law to the Court of
Justice of the European Union (CJEU), which gives judgment independently of the pending
national case.

In the early days of its existence, the procedure, despite being regarded as „the jewel in the
Crown of the ECJ’s jurisdiction” (Craig, 2012, p.576)- a stroke of genius of the EU’s legal
system- presented itself esentially like a paradox: it was alltogether unpopular. The Court had to
encourage the increase in the number of cases through the establishment of a rather broad
definition for national courts competent to refer a matter and deliberately refraining from
appreciating a question’s pertinence. This attitude has been so effective that over the years, the
preliminary ruling procedure became a possible victim of its own success. And this because, in
the words of Weiler1, in its success „lie the roots of future danger”(Norberg, 2005, p. ). But in
order to refrain from further instilling undesirable skepticism related to the subject (Şandru,
Banu, Călin, 2013), it should in my opinion only be noted that a series of problems
unequivocably exist in what it is concerned. This article aims at analysing them in short and, in
the extent possible, offering solutions.

According to Toth(1987, p. 394-400), there are three main categories of issues: the increased
workload of the Court, the problem of remedying breaches against the obligation to refer and
problems relating to the actual proceedings.

In what concerns the most notorious problem – the increased caseload facing the Court - the
number of references brought before it has increased drastically over the years: from 10 cases in
1954, 102 in 1974, 344 in 1994 to 531 in 2004. This lead to a number of problems including,
according to Weiler, “the risk of lower quality of the rulings and a risk of dilution of the
normative effect of the rulings when the Court deals more with details than overseeing the
development of Community law in a smaller number of important cases”. And still, regardless of
this eventuality, the problem remains that the time it takes for the Court to give a ruling could
allegedly lead to a breach of the right to a fair trial, as established by Article 6 of the ECHR. In
fact, such was the case with Greece, on trial for national proceedings still pending after eleven

1
Weiler J.H.H. “The European Court, National Courts and References for Preliminary Rulings – The Paradox of
Success: A Revisionist View of Article 177 EEC“ in “Article 177 EEC: Experiences and Problems” Schermers et al
(eds.), 1987, p 368.
years, due among others to a reference to the ECJ prolonging the case by two years and seven
months. While the ECtHR understandably refrained from it, one can undoubtedly argue that this
points to the gravity of the problem for individuals, re-emphasising Gladstone’s words: “justice
delayed is justice denied”.

In 2013 however, the Court announced in it’s report a number of 450 such rulings, with a
medium duration for the proceeding extending to 16.3 months. This was achieved primarily
through the enhancements in the inner workings of the Court, consisting of the possibility to
dispense of the oral phase, the simplified, accelerated and urgent procedures, the possibility of
ruling without the conclusions of the Advocate General, introduced by the Nice Treaty, as well
as Court of First Instance having (limited) jurisdiction in what concerns the procedure. Before
the Nice Treaty, there have been two important papers which directly address key issues
concerning the Union’s judicial architecture. 2One has been written by members of the ECJ and
CFI, and is commonly referred to as the Courts’ paper. The other was produced by the Working
Party, the Chairman of which was Ole Due, hence the Due Report. Among the proposals
presented to reform the preliminary ruling system there were calls to give the Court greater
“docket-control” to decide which cases to take on, greater responsibility for national courts to
give their opinion on Union law and a greater role for the Court of First Instance.

Furthermore, criticism by it’s own Advocate General, Ruiz-Jarabo Colomer, in case C-17/00
François De Coster v Collège des bourgmestre et échevins de Watermael-Boitsfort does not
therefore appear as wholly surprising looked at from this perspective: ‘’The result is case-law
which is too flexible and not sufficiently consistent, with the lack of legal certainty which that
entails. The profound contradictions noted between the solutions proposed by Advocates General
in their Opinions and those adopted by the Court of Justice in its judgments illustrate that the
path is badly signposted and there is therefore a risk of getting lost. The case-law is casuistic,
very elastic and not very scientific, with such vague outlines that a question referred for a
preliminary ruling by Sancho Panza as governor of the island of Barataria would be accepted.’’
Bordering the absurd, the example I have chosen stands, if we consider that what we measure
these words against is nothing else than the original purpose of the procedure itself, the
uniformity of EU law by the Court, a goal as far away as possible from the arbitrary implied. In
fact, it has long been emphasized3 by the doctrine that the spirit of the preliminary ruling
procedure has been tempered with by the everchanging distribution of coordinates in
cooperation.

A gap in legal protection arguably exists when a national court does not share a party's
conviction that a preliminary reference on a question of Community law is necessary to reach a
decision. The discussions on legal policy, primarily among practicing lawyers, have as a

2
Craig Paul, The Jurisdiction of the Community Courts Reconsidered, The Texas International Law Journal, Volume
36, 2012, Issue 3, Article 4.
3
O’Keeffe D., Is the Spirit of Article 177 under Attack? Preliminary References and Admissibility, 1998, Issue 23,
European Law Review, p. 509.
consequence focused on whether a right to bring a matter before the ECJ should not be conferred
upon individuals on the grounds of effective legal protection. Also, because failure to comply
with the duty to refer is not only detrimental to the Union's interest, but also constitutes an
infringement of the individual legal protection accorded under Union law, in a number of
Member States it is also an objective breach of internal (administrative) law. The Romanian legal
system offers the specific means of admission of the motion for revision. It is worth mentionning
however that the infringement has remained with little or no practical significance to date.

To conclude, an important yet not central element of integration4, the preliminary ruling
procedure, created on the basis of descentralisation, has as most powerful –and , for the Court,
most dangerous- feature the fact that national courts can manifest their dissatisfaction by refusing
to comply with the rulings of the ECJ. It is in my vue, a crucial element of cooperation to
maintain the preliminary ruling procedure within limits and equilibrium, regarding both the
procedural and material side of implementation.5

Mocanu Diana Mădălina, an IV

Facultatea de Drept a Universității Alexandru Ioan Cuza, Iași

4
Fahey Elaine, Practice and Procedure in Preliminary References to Europe:30 Years of Article 234 EC Caselaw from
the Irish Court, Firstlaw, 2007.
5
Tridimas T., Knocking on Heaven’s Door: Fragmentation, Efficiency and Defiance in the Preliminary
Reference Procedure, 2003, Issue 40, Common Market Law Review, p. 9, 37.