Irene das Neves (Appeal Court Judge of the Northern Administrative Central Court - Tax Litigation Section), Dora Lucas Neto (Appeal Court Judge of the Southern Administrative Central Court - Administrative Litigation Section), and Isabel Silva (Judge of the Administrative and Fiscal Court of Braga - Tax Litigation)

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The reference for a preliminary ruling, provided for in Article 19(3)(b) of the Treaty on European Union (TEU) and Article 267 of the Treaty on the Functioning of the European Union (TFEU), is a fundamental mechanism of EU law.[1] It is an “incident” within national proceedings that obliges the national judge to stay the proceedings because it is faced with the need to obtain a “preliminary” ruling from the Court of Justice of the European Union (CJEU) on the interpretation of EU law or the validity of the acts of its bodies, institutions or agencies, with a view to the proper administration of justice within the EU. To that extent, the national courts playing the role of guardians of EU law, ensuring the effective and homogenous application of the law, and seeking to avoid divergent interpretations by the various courts of the Member States.

It was on this theme of the reference, focused on the reference for the interpretation of EU law, that the President of the CJEU, Koen Lenaerts, opened the 2021 Judges’ Forum, which was held at the CJEU from 21 to 23 November and brought together judges from the courts of first instance and the appeal courts of the Member States, recalling that the reference for a preliminary ruling is an instrument of judicial cooperation by means of which the national judge and the EU judge are called upon, within the scope of their respective powers, to contribute to a decision ensuring the uniform application of EU law by the Member States.

On that basis, and about the obligation of the national judge to make a reference for a preliminary ruling on the interpretation of EU law, particularly in higher courts (an obligation which exists in courts of first instance when there is no appeal),[2] the President of the CJEU referred to the case-law in Judgment CILFIT of 1982,[3] in which the CJEU accepted three exceptions to the obligation to make a reference: (i) the question to be settled is very clear and obvious and there is no reasonable doubt as to the interpretation of EU law (acte clair doctrine), (ii) the question raised is impertinent as it has no bearing on the decision of the national dispute, and (iii) the CJEU has consolidated case-law on the question referred to it.

The President of the CJEU recalled the aim of improving the dialectic between the CJEU and national courts to rise above the specific national case. When preliminary rulings are issued, the referring courts should, on the basis of the specific case, be more abstract and general in the questions put, since that will be the answer that they will find from the CJEU. The aim is to obtain greater value from the case interpreted, which, in addition to resolving the doubts of the national referring court, should be understood and useful for all courts. This is because if the question referred for a preliminary ruling focuses only on the specific features of the individual case, the judgment on the interpretation will end up being unclear to the other national courts, since it will be difficult for them to understand it, as it is not necessary for all Member States to be familiar with the specific features of each other’s law. Sometimes it is necessary to reformulate the questions put by the national court, not because they were badly put, but simply so that the answer given by the CJEU could be as useful as possible to other courts.  So, it is important to look at the facts on a broader scale, so that the interpretation made would be relevant to the Member State and to all courts, stressing that the interpretation of EU law was a responsibility shared by all national courts, and that national judges were simply judges of the EU in constant dialogue with EU law.

When the CJEU gives rulings on the interpretation or validity of EU law, its purpose is to provide a useful answer to the dispute in the main proceedings and to all national courts, while it is for the referring court to draw the specific consequences of the answer given, ruling out or not applying the national rule in question, given that that answer can and must be extended and interpreted to other similar situations in other Member States.

The reference must focus on the interpretation or validity of EU law, and not on the rules of national law or matters of fact raised in the main proceedings, which is why the CJEU gives judgment only when EU law, which requires interpretation, is called upon and applied in the main proceedings before the national court. A line must be drawn between the interpretation of EU law, which is shared by all national and EU judges, and the application of EU law, whereby, in the case in question, the one applying EU law is the national judge who interprets it or whose interpretation has been provided for by the CJEU in its dialogue with the CJEU. The CJEU therefore does not apply justice to the individual case, but only provides the referring court with guidelines to assist it in the uniform application of EU law.

Thus, in conclusion, the CJEU’s interpretation of the answers given in its judgments seeks to provide relevant answers both to the referring court and to all the courts, so that all courts can take on board the interpretative lessons and adjust them to their own specific situations. The same is required of the national judge, who must ask the question referred for a preliminary ruling without focusing on the specific characteristics of its own particular case, by imposing a greater level of abstraction on the questions asked, so that the answer provided can be validly applied in other national legal systems, thereby avoiding unnecessary referrals from other Member States. The national judge should take the focus of the questions it raises away from its own specific situation, trying to embrace a generality of situations without losing sight of the fact that the answer provided should meet its interpretative needs.

It was in this context that the President of the CJEU argued that the responsibility of interpreting EU law is a responsibility shared by national courts, as judges of the Union who are in dialogue, in these terms, with the Union. Incidentally, it has been through this dialectic between the courts – and the answers that have emerged to the questions referred for a preliminary ruling – that some of the most structural principles of EU law have emerged from the case-law of the CJEU, as the obligation for national administrations and judges to apply EU law internally (direct application of EU law) and to disapply all national provisions which contravene EU law (primacy of EU law over national law).

A legal system such as the EU legal system, which brings together different Member States with different legal and constitutional traditions, advocates homogeneity in the interpretation and application of EU law, which points to the need for and obligation of “dialogue” between European judges, in order to give substance to the primacy of EU law – according to which no national norm, of whatever nature (including constitutional norms), may contravene a EU norm –, thereby preventing incompatible national norms from having a paralysing effect on this law.

Even so, it should always be noted that the application of this principle of primacy of EU law has not failed, both in the past and nowadays, to generate discussions and resistance. An example of this is the request for a preliminary ruling from the Curtea de Apel Craiova (Romania), lodged on 14 July 2021, RS (case C-430/21), from which emerges the resistance of Romanian legislation to accept the primacy of EU law, as we had the opportunity to witness in the hearing of allegations, which took place on 23 November 2021, from the following questions referred:

i) Does the principle of the independence of the judiciary, enshrined in the second subparagraph of Article 19(1) TEU, read in conjunction with Article 2 TEU and Article 47 of the Charter of Fundamental Rights of the European Union (CFREU), preclude a provision of national law, such as that contained in Article 148(2) of the Romanian Constitution, as interpreted by the Constitutional Court, in Decision No. 390/2021, according to which national courts have no jurisdiction to examine the conformity with EU law of a provision of national law that has been found to be constitutional by a decision of the Constitutional Court?;

ii) Does the principle of the independence of the judiciary, enshrined in the second subparagraph of Article 19(1) TEU, read in conjunction with Article 2 TEU and Article 47 of the CFREU, preclude a provision of national law, such as that contained in Article 99(ș) of  Law No. 303/2004 on the rules governing judges and prosecutors, which provides for the initiation of disciplinary proceedings and the application of disciplinary penalties in respect of a judge for failure to comply with a decision of the Constitutional Court, where that judge is called upon to acknowledge the primacy of EU law over the grounds of a decision of the Constitutional Court, that provision of national law depriving him or her of the possibility of applying a judgment of the CJEU which he or she regards as taking precedence?;

iii) Does the principle of the independence of the judiciary, enshrined in the second subparagraph of Article 19(1) TEU, read in conjunction with Article 2 TEU and Article 47 of the CFREU, preclude a national judicial practice which precludes a judge, on pain of incurring disciplinary liability, from applying the case-law of the CJEU in criminal proceedings in relation to a complaint regarding the reasonable duration of criminal proceedings, governed by Article 4881 of the Romanian Code of Criminal Procedure?

The CJEU´s response will necessarily involve its judgment Associação Sindical dos Juízes Portugueses.[4] It is a judgment of far-reaching consequences for effective judicial protection and the rule of law within the EU – and, arguably, for the construction of the legal-constitutional model that supports the European integration.[5] In the 2018 “Portuguese Judges” judgment, the CJEU was asked to determine whether there is a general principle of EU law, according to which the authorities of the Member States are obliged to respect the independence of the national judges. In its response, the CJEU underlined that Article 19 TEU obliges Member States to ensure effective judicial protection in areas covered by EU law. This embodies the value of the rule of law stated in Article 2 TEU and recognizes the integrated nature of the EU’s judicial system, as national courts play a role which is jointly assigned to them with the CJEU with a view to ensuring respect for the law in the interpretation and application of Treaties. Thus, as Alessandra Silveira explains, a problem related to the judicial independence in Portugal is necessarily a European problem since the national courts ensure the interpretation and application of the EU law in each Member State.[6]

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[1] On this theme see Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (2019/C 380/01), 8 November 2019, https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=OJ:JOC_2019_380_R_0001

[2] Moreover, from settled case-law that although national courts and tribunals may reject pleas raised before them challenging the validity of acts of an institution, body, office or agency of the Union, the Court has exclusive jurisdiction to declare such acts invalid. When it has doubts about the validity of such an act, a court or tribunal of a Member State must therefore refer the matter to the Court, stating the reasons why it has such doubts. See Recommendations to national courts and tribunals, cit., recital 7.

[3] See, Judgment of the Court of Justice of the European Union of 6 October 1982, C-283/81, CILFIT, ECLI:EU:C:1982:335 and Judgment of the Court of Justice of the European Union of 6 October 2021, Consorzio Italian Management and others, C-561/19, ECLI:EU:C:2021:799.

[4] Judgment of the Court of Justice of the European Union of 27 February 2018, C-64/16, ECLI:EU:C:2018:117, ECLI:EU:C:1982:335

[5] See Alessandra Silveira, Building the ECJ puzzle on judicial independence in a Union based on the rule of law (Commission v Poland in the light of ASJP), 8 July 2019, The official blog of UNIO, https://officialblogofunio.com/2019/07/08/building-the-ecj-puzzle-on-judicial-independence-in-a-union-based-on-the-rule-of-law-commission-v-poland-in-the-light-of-asjp/

[6] See Alessandra Silveira, Horizontal integration and Union based on the rule of law, Paulo Pinto Albuquerque/Anabela Rodrigues/Jónatas Machado (eds.), “High Level Conference Rule of Law in Europe”, Portuguese EU Council Presidency – 2021Portugal.EU (forthcoming); Alessandra Silveira and Joana Abreu, Review of Portuguese Association of European Law’s webinar on the rule of law protection in the European Union, 14 June 2021, The official blog of UNIO, https://officialblogofunio.com/2021/06/14/review-of-portuguese-association-of-european-laws-webinar-on-the-rule-of-law-protection-in-the-european-union/

Picture credits: AJEL.