Preliminary rulings from the CJEU: what are they again?
|Post-festive cranial fuzziness|
- The national court refers questions to the CJEU - either at its own initiative or at the parties’ request - via an “Order for Reference” which is accompanied by the court’s summary of the relevant factual background, the relevant points of law, and the questions put to the CJEU.
- The parties to the proceedings, any Member State, and the EU Commission can file written submissions [known as ‘written observations’] to the CJEU within a set time period (usually around 2 months from the date of the Order for Reference). Written observations are filed simultaneously and there is usually no opportunity to provide any written evidence in reply. [So you have to set out your case, predict what opposing arguments might be raised, and counter these where possible in your written observations.]
- An oral hearing may be convened at the parties’ request where the CJEU considers it is necessary for further submissions. Parties are usually only given 20 minutes to make oral submissions, and the CJEU may direct that submissions are focused on specific points [i.e. the written observations are really the only opportunity you have to set out your substantive case]. The hearing is heard in public [if you fancy a trip to Luxembourg], but it is not possible to obtain a transcript of the hearing (as far as this Kat is aware).
- The Advocate-General may provide an Opinion (although an Opinion is not always requested).
- The CJEU hands down its ruling [roughly speaking, between 18-24 months after the Order for Reference, and usually around 3-4 months after the Opinion if there is one]
Parties tear their hair out trying to understand what on earth the CJEU meant.
|I still have no idea |
what you are saying
A further issue is when the CJEU [unilaterally] decides to ‘paraphrase’ the questions carefully formulated by the referring court and delivers its ‘answer’ on the basis of its own re-formulated question. This can lead to substantive argument between the parties on what the CJEU meant, and how its ruling should be applied to the facts of a case.
- Italy, Poland: 5
- UK: 4
- Austria, Germany: 3
- France, Netherlands: 2
- Belgium, Czech Republic, Estonia, Finland, Hungary, Lithuania, Spain: 1
CJEU statistics here