The preliminary ruling procedure
13 important questions on The preliminary ruling procedure
Three procedures that will lead to the CJEU
- The infringement procedure
- preliminary ruling procedure
- actions for annulment, action for failure to act, the plea of illegality
Reason infringement procedure
Dual vigilance model
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Four stages of the infringement procedure
- pre contentious/ informal stage
- letter of formal notice
- reasoned opinion
- judicial stage
Pre-contentious/ informale phase
The Commission looks by investigating whether there's a case that can be brought to court.
only when there is a solid case the commission will start the infringement procedure.
The commission will try to establish the facts by contacting the MS in so called 'package meetings'. In 75% of the cases this solves it.
It is not the task of the Commission to actively look at sources of infringement of EU-law. Sources:
- complaints of EU citizens
- the Commission is not obliged to act on those, so there is no failure to act (art. 265 TFEU)
Goal of the judgement in the infringement procedure
the court notices that a violation happened and the MS needs to end that violation. It doesn't state how this needs to be done. It can't set aside the legislation which violates, it can't put up a deadline and it can't award damages.
Failure of notifying a measure
If a MS fails to notify measures transposing a directive, the EC will be able to give sanctions (lumb sum or penalty payment) the first time they start an infringement procedure.
Initiation of proceedings by another MS
the practical value is limited. A MS needs to bring the case before the EC, after both parties have handed an oral and written submission in. There is always the possibility for the commission to take over the case based on those submissions.
Why are MS not willing to start this procedure
- Politically very sensitive, it is not very diplomatic to bring a case before the court
- The commission always has the right to take over the case.
Purpose of the preliminary ruling procedure
- Uniform application of EU-law.
- This is difficult to achieve because every national judge applies law different. Therefore the interpretation of ambiguous terms in EU law can vary greatly.
- To ensure every national court applies EU law the same way, questions are referred to the CJEU. It will give a ruling which sets a precedent which is applies by all national courts -> CILFIT
- the development of EU law
- practicing the procedure offers an important remedy for private parties to challenge acts of the EU institutions
Three elements of the preliminary procedure
- who can refer preliminary questions
- what questions can be referred to the court
- are they obliged to refer, do they have discretion to refer or do they simply only have the right
Stappenplan preliminary ruling procedure (jurisprudence)
- Case TDC
- must be fulfilled
Step 2: distinction between questions on interpretation and questions on validity
- validity -> Case Foto Frost
- no exceptions
- interpretation -> CILFIT
- lower courts -> may
- courts of last instance -> must
- exceptions
- not relevant for the outcome
- acte clair -> Ferreira da Silva and CILFIT
- acte éclairé
Available remedies when a state violates the obligation to refer preliminary questions
- State liability
- a breach of EU law by a MS. Before a national court parties can get compensation for the damages suffered by that breach
- infringement procedure
- ECRH
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