As the title indicates, the seminar focused on the obligation of national courts of last instance to make requests for preliminary rulings as interpreted in the case-law of the CJEU.
The presidents of the Supreme Administrative Courts of Sweden and Finland, Helena Jäderblom and Kari Kuusiniemi, opened the seminar with welcome speeches and thanked the participants for their engaged responses to the questionnaire, which had contributed greatly to the General Report and laid the ground for fruitful discussions on the important role of national courts of last instance in upholding the uniformity of EU law through the preliminary ruling procedure.
A presentation of the General Report was then held by Sarah Helaoui, Emma Millberg and Sofia Karlsson Wramsmyr, Judge Referees at the Supreme Administrative Court of Sweden.
The President of the CJEU, Koen Lenaerts, took part in the opening session by generously sharing his views on new developments concerning the “acte clair” doctrine. President Lenaerts emphasised that the preliminary ruling procedure should not be viewed as a purely vertical dialogue between the CJEU and the national courts of last instance, but rather as a horizontal network between colleagues. He highlighted that the national courts, when referring a question for a preliminary ruling, have the possibility to set the basis for the quality of the European debate by the very formulation of the questions and by indicating the answer that the national court itself believes should be given. He also pointed out that the fact that a question has previously been answered by the CJEU does not prevent the question from being asked again, if the national court believes that there is reason to adjust the case-law. Especially in such cases, it is important that the national court indicates why it does not consider that the existing case-law should be applied. Further, President Lenaerts stressed the role of networks such as ACA-Europe – which circulate national case-law – in upholding the Consorzio criteria that it must be equally obvious to other national courts of last instance that the correct interpretation of EU law is so obvious as to leave no scope for any reasonable doubt.
The seminar was divided into three sessions of round-table discussions, each focusing on a relevant topic related to preliminary rulings.
The first round-table discussion was moderated by associate professor Anna Wallerman Ghavanini at the University of Gothenburg. It was devoted to the issue of formulating the request for a preliminary ruling. Anna Wallerman Ghavanini began by outlining some reflections from the General Report and her research on the topic. At a general level, the discussion revealed that it is often beneficial for the national court to describe all the facts and the whole context in which a case is to be assessed, as well as the consequences of answering a question in one way or another. This can help the national court to get a useful answer from the CJEU in the specific case. Furthermore, the discussion addressed the question of whether it is appropriate for a national court to state its own view when formulating a request for a preliminary ruling. Some participants, including President Lenaerts, expressed that this could help the CJEU to better understand the case and the questions asked. It could also be useful for Member States when deciding whether to intervene or not. While some participants considered that it could never be seen as biased for a national court to express its own view, others stated that doing so could give the impression that the court is prejudging the outcome of the case. Lenaerts underlined that such views must be given with an open mind, observing that where this is the case the referring court cannot be considered biased for availing itself of possibilities provided for in the procedural rules of the CJEU.
The topic of the second session was the requirement to state reasons when a national court of last instance rejects a demand to request a preliminary ruling. This session was moderated by professor Jörgen Hettne at Lund University. He opened the discussion by highlighting the case Lyckeskog (C-99/00) and raised the question whether requirements in national legislation for leave to appeal affect the extent of stating reasons when rejecting a request for a preliminary ruling. The following discussion drew attention to the current case Kubera (C-144/23), where the Supreme Court of Slovenia has asked the CJEU if the obligation to state the reasons for judicial decisions also applies to a request for a preliminary ruling in a case where “leave to revision” is denied. Pending the CJEU’s ruling in this case, participants emphasised that it is difficult to give extensive reasons when the case is not examined on the merits. Furthermore, the issue of the accountability and personal liability of the judge for damages at a national level was raised. The point was made that any possible responsibility for the judge must be limited only to the statements of reasons and not concern the choice itself to request – or not request – a preliminary ruling. During this discussion, President Lenaerts emphasised that the preliminary ruling procedure constitutes an important mechanism of cooperation between the CJEU and the national courts and does not constitute a remedy for the parties.
The third and final session was moderated by senior researcher Dr. Anna Wetter Ryde at the Swedish Institute for European Policy Studies. The focus of this session was on the role that national courts have, or should have, in upholding the EU's constitutional system. As Anna Wetter Ryde initially explained, Article 263 TFEU provides a limited avenue for examining whether an EU-act is compatible with, for example, human rights or the competence of the EU. Thus, national courts can play an important role in safeguarding EU law by referring questions of validity. Despite this, the participants stated that national courts rarely ask about the validity of an EU-act. As a reason for this, participants emphasised that they are bound to deal with cases brought forward by the parties and cannot “choose” cases where issues of validity of EU legislation are raised. At the same time, it was recognised that only the CJEU can rule on the validity of an EU-act and that this indeed requires that the national courts take on the responsibility to ask questions of validity in order to uphold the EU legal system.
The seminar was concluded with a comprehensive overview and reflections on the General Report and the seminar discussions by Anna Wetter Ryde and Jörgen Hettne.