Yearbook of European Law - Vol. 14

By Francis Geoffrey Jacobs | Go to book overview

The Admissibility of Preliminary References

DAVID ANDERSON


I. Introduction

The limits placed by the text of Article 177 EC on the jurisdiction of the European Court to answer preliminary references are few. So long as the question concerns the validity or interpretation of Community law, is raised before a court or tribunal of a Member State, and, in the opinion of that court or tribunal, needs to be decided to enable that court to give judgment, the European Court has jurisdiction to answer it.

In the early years of the Community, there was no reason for the Court even to contemplate the imposition of further conditions on the admissibility of preliminary references. Its concern was the opposite one: to encourage national courts to make use of a procedure which has proved to be a uniquely effective way of injecting Community law into the domestic legal systems of the Member States. This took time. The first preliminary reference under Article 177 EEC1 was not made until 10 July 1961, more than three years after the entry into force of the EEC Treaty, and it was later still before the preliminary reference procedure became accepted outside the Netherlands.2 The equivalent procedure under the ECSC Treaty took even longer to be recognized, the first reference3 coming only in 1968, some sixteen years after that Treaty entered into force. Though the order for reference or questions were sometimes open to criticism, 4 the Court continued to welcome them.

Perseverance brought success. The preliminary reference procedures in the original three Treaties have been imitated, to a greater or lesser extent, in Protocols to the Brussels Convention, Convention on the Mutual Recognition of Companies and Legal Persons, Rome Convention, and Community Patent Convention. An average of 150 references per year were made in the ten years to 1993, and in both 1993 and 1994 the tally

____________________
1
Case 13/61 Kledingverkoopbedrijf de Geus en Uitdenbogerd v Robert Bosch GmbH [ 1962] ECR45, a reference by the Court of Appeal of the Hague.
2
Eleven out of the first twelve preliminary references came from Dutch courts, as Advocate General Lagrange remarked in Case 6/64 Costa v ENEL [ 1964] ECR585, the other coming from Luxembourg.
3
Case 23/68 Klomp v Inspektie der Belastingen [ 1969] ECR43.
4
Case 26/62 NV Algemene Transport- en Expeditie Onderneming Van Gend en Loos v Nedertandse administratie der belastingen [ 1963] ECR1 at 11; Case 75/63 Hoekstra v Bedriffsvereniging Detailhandel [ 1964] ECR177; Case 6/64 Costa v ENEL [ 1964] ECR585 at 593.
© David Anderson, 1995. Barrister, Brick Court Chambers, Visiting Lecturer, King's College London. Parts of this article are based upon a chapter from the author's book References to the European Court ( Sweet & Maxwell 1995).

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