A preliminary ruling is a decision of the European Court of Justice (ECJ) on the interpretation of European Union law that is given in response to a request (preliminary reference) from a court or a tribunal of a member state. A preliminary ruling is a final determination of European Union law, with no scope for appeal. The ECJ hands down its decision to the referring court, which is then obliged to implement the ruling.
Preliminary rulings are issued by the ECJ. The Treaty of Lisbon provides that jurisdiction may be delegated to the General Court, but that provision has yet to be put into effect. If, as in Factortame, the ECJ holds that a member state's legislation conflicts with EU law, the member state is required to "disapply" such law, but the ECJ may not amend the member state's legislation itself.
Preliminary rulings make up the bulk of business in the Court of Justice of the European Union since few persons have locus standi to litigate in the Luxembourg court. "Privileged parties" with standing include all member states and EU institutions, but a private person or "undertaking" has standing only if it is the addressee of an EU decision.
Procedure
If a court or tribunal of a member state finds a provision of EU law to be ambiguous, equivocal or unclear, it may seek a preliminary ruling, and a court or tribunal from which there is no appeal must make an application. In either case, the domestic court be adjourned until the ECJ ruling is issued. The question to the ECJ must be short and succinct, but it may be accompanied by documents explaining the issue's context and circumstances. The ECJ may decline to give judgement in the absence of a genuine dispute on the basis that it will not consider "moot points".
Article 267 of the Treaty on the Functioning of the European Union provides:
That is qualified by Article 275 (excluding Common Foreign and Security Policy) and Article 276 (excluding member state acts in the area of freedom, security and justice).
Right and duty to refer for preliminary ruling
The highest court in a jurisdiction must refer and lower courts may refer to Article 267 TFEU. For the rules in the United Kingdom while it was an EU member state, see s 2(1) European Communities Act 1972 and Part 68 Civil Procedure Rules.
Article 267 of the Treaty on the Functioning of the European Union (TFEU), establishing the preliminary reference procedure, differentiates between the right and the duty of national courts to seek a preliminary ruling. Under the discretionary reference stipulated in Article 267(2) TFEU, a national "court or tribunal" may ask the ECJ to give a preliminary ruling if it considers that a decision on the question is "necessary" to enable it to judge a particular case. The obligatory reference (duty to refer) is established in two cases: with respect to national courts adjudicating at last instance (Article 267(3) TFEU) and with respect of all courts faced with a question of the validity of EU law.
The function of the obligation to refer is "to prevent a body of national case law not in accord with the rules of [EU] law from coming into existence in any member state": Case 107/76 Hoffmann-La Roche v Centrafarm at 5. Both the highest court in a member state and the Benelux court has the obligation to refer: Case C-337/95 Parfums Christian Dior v Evora.
The obligation of national courts of last instance to refer for a preliminary ruling when a question of the interpretation of EU law arises is subject to certain exceptions. In accordance with the jurisprudence of the Court, a national court is relieved from the duty to refer when questions of EU law are not relevant to the decision in the main proceedings, if a national court is "materially identical with a question which has already been subject of a preliminary ruling in a similar case" () or if when the proper interpretation of EU law is "so obvious as to leave no scope for any reasonable doubt".().
Courts that may ask questions
What constitutes a "court or tribunal" is a matter of EU law and is not to be determined by reference to national law. In determining whether or not a body is a "court or tribunal of Member State", the EU courts take a number of issues into account: whether it is established by law is permanent, has compulsory jurisdiction, has an inter partes procedure, applies rules of law and is independent.