Chapter 13 Answer guidance

Q3) What are preliminary references?

See section 13.4

  • Preliminary references are indirect actions as they are not brought to the Court of Justice by the parties to the case.
  • They are referred to the Court by a national court or tribunal.
  • 601 such cases were referred to the Court of Justice in 2019, which is double the total from ten years previously.
  • Since any court or tribunal in a Member State may make a preliminary reference, the enlargement of the EU and the development of law and policy in a growing number of areas have contributed to the consistent growth in the number of cases referred.
  • A preliminary reference occurs when the national court is faced with an issue of EU law it is unable to answer (Article 267 TFEU).
  • The Brexit-related case of Wightman is a good example.
  • To ensure that the CJEU is not over-burdened with preliminary references, Courts in Member States cannot ask questions on points of law where the CJEU has already given a ruling, nor should theoretical or hypothetical questions be referred.
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