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A preliminary ruling is a decision of the European Court of Justice (ECJ) on the interpretation of European Union law, made at the request of a court of a European Union member state. The name is somewhat of a misnomer in that preliminary rulings are not subject to a final determination of the matters in question, but are in fact final determinations of the law in question. Preliminary rulings can also be made, in certain circumstances, by the European Court of First Instance, although most are made by the ECJ.

A request (or reference) for a preliminary ruling is made by way of submitting questions to the ECJ for resolution. However questions are not answered in abstraction, but rather are submitted together with the circumstances leading up to their being asked. Thus whilst the ECJ is limited to deciding the law in question, the ECJ's ruling frequently leave little room to rule other than in a certain way. The ECJ may also decline to give judgement in the absence of a genuine dispute.[1]

National courts of final appeal are bound to refer matters of EU law which come before them to the ECJ, if requested to do so. Other national courts normally have the option to request a ruling from the ECJ,[2] although this is subject to exceptions.[3]

Courts capable of referring a question

Any "court or tribunal of Member State" can refer a question to the ECJ for a preliminary ruling.[4] The matter of what constitutes a "court or tribunal" is a matter of Union law and it is not to be determined by reference to national law.[5] In determining whether or not a body is a "court or tribunal of Member State" the European Courts will take a number of issues into account, namely whether:

  1. it is established by law,
  2. it is permanent,
  3. its jurisdiction is permanent,
  4. it has an adversarial procedure,
  5. it applies rules of law, and
  6. it is independent.[6]

However it should be noted that these criteria are not absolute. In Broekmeulen v Huisarts Registratie Commissie[7] the ECJ ruled that a body established under the auspices of the Royal Medical Society for the Promotion of Medicine, was a "court or tribunal" within the meaning of the treaty, even though the latter was a private association.

Footnotes

  1. ^ Case 244/80, Pasquale Foglia v. Mariella Novello (No. 2) [1981] ECR 3045 at para. 18.
  2. ^ Article 234 (ex Article 177) of the Treaty establishing the European Community.
  3. ^ Article 68 (ex Article 73p) of the Treaty establishing the European Community.
  4. ^ Article 234 EC
  5. ^ Case C-24/92, Corbiau v Administration des Contributions [1993] ECR I-1277 at para. 15.
  6. ^ Case C-54/96 Dorsch Consult Ingenieurgesellschaft v Bundesbaugesellschaft Berlin [1997] ECR I-04961 at 23.
  7. ^ Case 346/80, [1981] ECR 2311
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