Online veröffentlicht: 04. Juni 2024
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DOI: https://doi.org/10.2478/wrlae-2023-0020
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© 2023 Tereza Kunertová, published by Sciendo
This work is licensed under the Creative Commons Attribution 4.0 International License.
European Union law and its norms have been heavily assimilated into the legal codes of every EU Member State. The impact and extent of EU law on national statutes is exemplified by the following statement, which can be found in the foreword to almost every legislative act in the Czech Republic: ‘this law incorporates relevant norms of the European Union.’ The respective footnote thereto provides a list of directives the Czech act transposes and regulations to which it adapts. In 2022, the European Union adopted approximately 1,786 binding legislative and non-legislative acts.
These include basic and amending acts adopted by the European Parliament and Council, Council regulations, delegated acts of the Commission and implementing acts of the Commission or Council. Source: In individual years, the number of adoptions of new acts could differ substantially; subsequently, many of those could have either been repealed or amended. Lisa O’ Carroll, ‘UK government finds extra 1,400 laws to scrap under Rees-Mogg’s Brexit bill’ (The Guardian, 8 November 2022) <
The Court of Justice of the European Union (hereinafter referred to as the ‘CJEU’) is the final adjudicator on the validity and interpretation of EU laws.
See Art. 267 of the Treaty on the Functioning of the European Union (hereinafter referred to as the ‘TFEU’): ‘The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union….’ Based on numbers from the annual reports of the CJEU; as of 2022, since the Czech Republic’s accession in 2004, Czech courts have referred a total of 104 preliminary questions. Year 2022 actually helped to raise the bar to 5.5 questions per year as in 2022 the highest number of 13 preliminary questions was referred to the CJEU. Up to that point, it averaged only 4.7 questions per year.
First, I analyse the number of preliminary questions referred by Czech courts and how the Czech Republic stands in comparison to other Member States (section 2). Secondly, I try to extract three potential reasons for the low number of preliminary questions referred by Czech courts (section 3). Based on my own personal professional experience, and from analysis of the publicly available data, I conclude that these reasons may include lack of understanding of the relevance of EU law, the nature of preliminary questions, and the restrictive definition of a court or tribunal under Art. 267 TFEU.
Prior to concluding this article, I posit a question of whether the low number of preliminary questions coming from the Czech Republic is in any way to its detriment (section 4). I am of the opinion that it does not have to be a detriment, but only if national judges are able to interpret and apply EU law in a sufficiently due and correct manner. In this regard, I also outline guidance for national judges and legal professionals as they look to interpret EU law. Before I delve more deeply into the subject matter, I would like the reader to keep in mind the following caveat and adage, which has been reaffirmed by my research: a simple question does not reveal simple answers.
Based on the above-mentioned rate of 5.5 preliminary questions per year, in absolute numbers, it appears that the Czech Republic provides only a handful of questions to the CJEU. But can it be definitively established that the Czech Republic tables fewer preliminary questions compared to other EU Member States? EU Member States substantially differ in their geographic size, population, judicial systems, and culture, and these factors influence their respective absolute numbers. Therefore, it can be misleading to simply compare the number of preliminary questions coming out of EU Member States.
However, I am persuaded that a comparison partly based on nations of analogous criteria constitutes an important element of any assessment. I would not be able to confidently answer the question without first understanding whether the low number of preliminary questions emanating from the Czech Republic is an exception or a common occurrence in similar EU Member States. Therefore, to facilitate this comparative approach, I have decided not to evaluate all EU Member States, but to refine my focus to include those nations that most closely mirror the Czech Republic. Thus, the selection criteria for nations in this comparative group includes EU countries that are a part of the CEE Region and/or are nations that mirror the Czech Republic’s terms of European Union accession and membership.
In the table below, I have compared statistics from 2017–2021 of EU Member States in the CEE Region that have a physical proximity to the Czech Republic.
Figures for 2022 were not available at the time of submission of this manuscript. For Poland, see Poland Population (2023) - Worldometer (worldometers.info) and for Romania see Romania Population (2023) - Worldometer (worldometers.info). For Czech Republic, see: Czech Republic (Czechia) Population (2023) - Worldometer (worldometers.info). The number of preliminary questions in Hungary is downright startling considering that disciplinary proceedings have been brought against national judges on the ground that they made a reference for a preliminary ruling. See Petra Bárd, ‘An Analysis of the CJEU decision C-564/19 IS,’ (
Figure 1:
the CEE Overview for 2021 and for the 5 years between 2017 and 2021
As the CJEU’s annual report for 2022 had not been published until the deadline for submission of this article, data for 2022 were not included.
Austria, though it is located in Central Europe, has had a longer relationship with the European Union compared to the other CEE EU Member States in the graph, and this may dilute the rationale for its inclusion. However, I have additionally reflected upon how many preliminary questions emanated from Austria within the first 19 years of its membership to the European Union. Within the first 19 years of its membership, courts in Austria referred 429 preliminary questions to the CJEU, which averages to approximately 22.5 preliminary questions per year. This is in stark contrast to the 5.5 preliminary questions that Czech courts have referred per year.
One can argue that the preliminary questions referred by more established EU Member States cemented the path of interpretation and the application of EU law for newer EU Member States. This constitutes the Judgment of the Court of Justice of 6 October 1982, CILFIT, 283/81, EU:C:1982:335, para 14: ‘[t]he same effect, as regards the limits set to the obligation laid down by the third paragraph of article 177, may be produced where previous decisions of the court have already dealt with the point of law in question, irrespective of the nature of the proceedings which led to those decisions, even though the questions at issue are not strictly identical’ Judgment of the Court of Justice of 17 October 1990, Café Hag, C-10/89, EU:C:1990:359. Opinion of Mr Advocate General Jacobs delivered on 13 March 1990, Café Hag, C-10/89, EU:C:1990:112, para 67. For further context, see the annual lecture by Vivien Judith Rose, Lady Rose of Colmworth, DBE,
As a next step, I have reflected upon on how the Czech Republic compares to other Member States that joined the European Union in 2004.
As set out in the graph above, I have found that among the nations that joined the EU in 2004, some of which have comparatively small populations, almost all have referred more preliminary questions per capita to the CJEU than the Czech Republic.
For example, Lithuania and Latvia, which have one-third the population of the Czech Republic, referred disproportionately more preliminary questions. Even Estonia and Slovenia, with approximately one-fifth the population of the Czech Republic or even less, referred approximately one-third of the number of preliminary questions referred by Czech Republic.
Figure 2:
Number of preliminary questions (2004 – 2021) from EU Member States that joined the EU in 2004
From the overview above, it is conclusive that only a few preliminary questions have emanated from the Czech Republic compared to the other EU Member States that joined in 2004. I will now elaborate on the possible reasons for this phenomenon, which makes the Czech Republic atypical.
Before I present the reasons as to why so few preliminary questions come from the Czech Republic, I would like to first examine how questions arise in the Czech Republic, using a sampling of questions submitted by Czech courts between 2017 and 2022.
Total number of preliminary questions referred to the CJEU from all Member States and the number of preliminary questions coming from the Czech Republic
| Total CJEU | 533 | 568 | 641 | 557 | 567 | ?
As of the deadline for submission of this article, the CJEU had not issued its annual report for 2022. I have derived 2022 numbers for the Czech Republic myself from the curia website. |
| CZ | 4 | 12 | 5 | 9 | 8 | 13 |
In the course of the Czech Republic’s 19 years of European Union membership, half of the total number of preliminary questions have been referred in the past six years.
104 total Czech preliminary questions were referred to the CJEU between 2004 and 2022, out of which 51 preliminary questions were referred between 2017 and 2022.
Figure 3:
EU norms subjected to the preliminary questions coming from the Czech Republic in 2017–2022
These numbers overlap, as some of the preliminary questions concern the interpretation of more than one EU norm.
According to Article 267 of the TFEU, if a preliminary question is raised in a case pending before a EU Member State’s court or tribunal, and there is no ( Altogether, both Supreme Courts and courts of first instance have each referred the same number of preliminary questions within the last 6 years – 23. In the Czech Republic, Supreme Courts consist of the Supreme Court of the Czech Republic and the Supreme Administrative Court. The Supreme Court of the Czech Republic is the highest judicial authority in matters within the courts’ jurisdiction in civil and criminal proceedings, except for matters that fall within the purview of the Constitutional Court or the Supreme Administrative Court. The Supreme Administrative Court is the supreme jurisdiction dealing with matters in the jurisdiction of administrative courts. Even though in 2022 the Supreme Court of the Czech Republic actually referred more preliminary questions than the Supreme Administrative Court, I would not consider this to be a paradigm shift yet, but rather more of an interesting fact to keep an eye on.
Multiple polls have been conducted on attitudes towards the EU and its institutions; however, I have found no relevant polls examining attitudes about the role of the CJEU. What statistics and evidence can help explain the reasons as to why there are so few preliminary questions from the Czech Republic? As rightly stated by Vikarská and Dřínovská, an important factor is the Natalia Dřínovská and Zuzana Vikarská. Evropská zletilost českých (nejvyšších) soudů aneb prvních 18 let předběžných otázek z Brna. (2023) 31
In my more than 15 years of legal experience, as both an attorney and as an in-house legal practitioner, I have routinely found negative or at best lukewarm attitudes towards EU laws in most of my legal colleagues and clients. The Czech Republic is regarded as one of the most EU-sceptical EU nations, perennially appearing at the bottom of ranked surveys of general attitudes towards the EU. According to research published in 2019 by the Pew Research Center, ‘[w]hile more people see the EU in a positive light than not, in the UK, Greece, the Czech Republic and France, these countries also have sizable portions of the public – more than four-in-ten – that voice negative opinions.’
‘European public opinion three decades after the fall of Communism’ (
According to quite-recent polls, it seems that current events such as the COVID pandemic, the war in Ukraine and its related energy crisis, and the Brexit process and its impact on the United Kingdom have all led to an increase in positive attitudes about the EU in the Czech Republic.
According to the survey done by the STEM Analytical Institute, the vote to remain in the EU in a hypothetical referendum increased from 46% in February 2022 to 54% in May 2022. Kathrin Yaromich, ‘Czechs and the EU: Does a ‘Czexit’ still have supporters?’ (expats.cz, 2 May 2022) < Neither the Czech ‘butter’ nor the domestic ‘rum’ correspond to what consumers in the European Union expect from products under these names. Judgment of the Court of Justice of 18 October 2012, European Commission v. Czech Republic, C-37/11, EU:C:2012:640, para 63: ‘[i]t must therefore be held that, by authorising pomazánkové máslo (butter spread) to be sold under the designation “máslo” (butter) even though that product has a milkfat content of less than 80% and water and dry non-fat milk-material contents of more than 16% and 2%, respectively, the Czech Republic has failed to fulfil its obligations under Article 115 of Regulation No 1234/2007 in conjunction with the first and second subparagraphs of point I(2) of Annex XV to that regulation and points 1 and 4 of part A of the appendix to that annex.’ Similarly, Czech producers have had to change the name of their “domestic” rum. One of the most spread Euromyths, quite often originated in the British tabloids and still supported by the Eurosceptic Czech media, is that it dictates the size of cucumbers allowed to enter the Internal Market. The aim of the highly criticised Commission Regulation (EEC) No. 1677/88 of 15 June 1988, laying down quality standards for cucumbers, was actually more about their classification than banning any abnormally bent ones; it was repealed in 2009.
Czech legal professionals, and their clients’ knowledge and understanding of the EU, mirror the society from which they originate, and the extent to which this subject is taught at schools and universities. Simultaneously, understanding the relevance of EU law, and harmonising interpretations between the CJEU and the Czech judiciary (which have the same or slightly better levels of EU knowledge), conflicts with the need to refer preliminary questions to the CJEU.
Under the Art. 267 TFEU, it is stipulated that ‘Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon [ Preliminary references C-78/22: ALD Automotive, C-524/20: Vítkovice Steel, C-86/20: Vinařství U Kapličky, C-881/19: Tesco Stores ČR. Czech Constitutional Court, II. ÚS 1009/08 of 8 January 2009, on the obligation of the general court to refer a preliminary question to the CJEU.
EU law is understood to provide the bulk of most national laws; however, once an EU law is incorporated into Czech law, a perception arises that Czech law and jurisprudence take precedence.
This perception might be also based on the restricted vertical direct effect doctrine of EU directives that can be invoked against a state only (except for the incidental horizontal effect, or in combination with other source of EU law, such as the Charter or general principles [e.g., Judgment of the Court of Justice of 22 November 2005, Mangold, C-144/04, EU:C:2005:709]) and thus is of limited use in practice. It is thus unsurprising that few authors have thus far called for horizontal direct effect of the directives. For example: Alan Dashwood, ‘From Van Duyn to Mangold via Marshall: Reducing Direct Effect to Absurdity?’ (2007) 9
An added objective of EU harmonisation was to institute a level playing field for rules in all EU Member States, with laws applied consistently no matter where an individual resides in the EU.
For example, while using e-commerce services, the same level of consumer protection is applied regardless of residence. This entails a harmonised level of information on certain financial products offered in the EU, the same consumer rights for the passengers travelling within the EU and sometimes beyond, etc.
However, in reality, the opposite outcome has largely occurred. I have noted the tendency to adjust EU laws to fit the already existing national legal order, thus pursuing a ‘national mindset’ in the interpretation and application of EU law by legal professionals. In everyday life, EU directives are mostly overlooked, as they are perceived to lack impact until they are transposed into national law. Additionally, EU regulations and decisions are usually adapted to fit to existing national practices, and thus interpreted in a way in which a nation’s body of laws is comprehended.
It is not unusual that the terms in EU directives are changed over the course of national transposition to better fit into the existing national practice. Even though I fully understand the practicality and aim to ease the transformation for the Czech audience as much as possible, it might than lead to certain difficulties in combining the application of EU and national rules and lead to misunderstandings. One of the examples is the eIDAS regulation (Regulation EU No. 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC). The Czech act No. 297/2016 Coll., adapting to some of the eIDAS stipulations, continues to use the existing Czech term ‘recognised electronic signature,’ which is a term unknown to the eIDAS itself. We should not forget that many aspects are actually laid down in non-legislative acts, such as the implementation and delegation of the acts of the Commission supplementing the legislative acts of the European Parliament and of the Council. According to the data from eur-lex, in 2022, the Commission adopted 180 delegated acts and 928 implementing acts, in comparison to 73 adopted legislative acts of the European Parliament and of the Council, and 464 legislative acts of the Council. Out of those 1,108 non-legislative acts of the Commission, only 11 were adopted in the form of directives, the vast majority being regulations and decisions. Those Commissions’ non-legislative acts are part of the EU law and embedded with primacy over the national law, and need to be understood and applied in a unified manner. Available online: See Figure Chart No. 3, exemplifying the number of different sources of EU law subjected to CJEU review in the Czech courts.
In conjunction with the previous factor, the second potential reason for low number of preliminary questions from the Czech Republic could be due to the understanding of the role and purpose of preliminary questions. According to Art. 267 TFEU, the purpose of a preliminary question is twofold. First, the question may address the interpretation of EU Treaties and/or the actions and acts of EU institutions, bodies, offices, or agencies. Second, preliminary rulings can decide on the validity of the acts by EU institutions, bodies, offices or agencies. The whole system is framed and functions around cooperation between national courts and the CJEU.
‘The ECJ itself refers to “an instrument of cooperation” and even uses the term “dialogue,” implying that there is a shared responsibility and a large degree of equality between both sides’ (see Jasper Krommendijk, ‘The interaction: dialogue or monologue?’ In See Art. 267 TFEU and further Opinion of Advocated General Bobek delivered on 15 April 2021, Consorzio Italian Management, C-561/19, EU:C:2021:291, para 23: ‘…Article 267 TFEU instituted direct cooperation between the Court of Justice and the national courts by means of a procedure, which is completely independent of any initiative by the parties. Thus, the mere fact that a party to the dispute in the main proceedings has raised certain issues of EU law does not oblige the court concerned to consider that a question has been raised within the meaning of Article 267 TFEU, rendering a reference mandatory. Conversely, that also means that a national court may submit a request for a preliminary ruling of its own motion.’
As Matthias Derlén and Johan Lindholm have pointed out, the division of labour between national bodies and the CJEU is, in theory, quite straightforward.
Mattias Derlén and Johan Lindholm, ‘Serving Two Masters: CJEU Case Law in Swedish First Instance Courts and National Courts of Precedence As Gatekeepers’ In: Mattias Derlén and Johan Lindholm (eds.), Judgment of the Court of Justice of 12 January 2023, Regiojet, C-57/21, EU:C:2023:6, para 92. Further as Bobek pointed out, ‘…the overall purpose of the preliminary rulings procedure, is no doubt to assist national courts in resolving individual cases involving elements of EU law. That case-focused ‘micro purpose’ certainly serves, in the long run, the more systemic ‘macro purpose’ of the preliminary rulings procedure. It gradually builds up a system of precedents (or, in the language of the Court, established case-law), which helps to ensure the application of EU law uniformly across the European Union’ (Opinion of Advocated General Bobek delivered on 15 April 2021, Consorzio Italian Management, C-561/19, EU:C:2021:291, para 55). For example, in the above mentioned case C-57/21, the CJEU, among others, decided that ‘Article 5(8) and Article 6(5)(a) and (9) of Directive 2014/104 must be interpreted as precluding national legislation which temporarily restricts, under Article 6(5) of that directive, not only the disclosure of information ‘prepared’ specifically for the proceedings of the competition authority, but also that of all information ‘submitted’ for that purpose.’ It is evident that the Czech transposition of the law is not in compliance with the respective directive as interpreted by the CJEU, and thus the national law will need to be amended. However, what does that mean for the national court deciding on the matter? The referring court needs to analyse the impact of that ruling, which cannot be done without comprehension of the effects of EU law, i.e., whether the directive could be invoked (in)directly, or whether the case will instead need to be decided in accordance with national law. Mattias Derlén and Johan Lindholm, ‘Serving two masters: CJEU case law in Swedish first instance courts and national courts of precedence as gatekeepers’ in Mattias Derlén and Johan Lindholm (eds.),
The arduous process of analysing preliminary rulings can be further complicated by the way CJEU judgments are structured, and meaning can be lost in translation.
Former President Rodriguez further worried that lengthy delays in cases decisions by the CJEU might dissuade national courts from referring cases to the CJEU. Joshua C. Fjelstul, J.C., Matthew Gabel, and Clifford J. Carrubba, ‘The timely administration of justice: using computational simulations to evaluate institutional reforms at the CJEU’ [2022] See Art. 32 of the Rules of Procedures of the CJEU, according to which ‘every Judge taking part in the deliberations shall state his opinion and the reasons for it,’ and ‘the conclusions reached by the majority of the Judges after final discussion shall determine the decision of the Court.’ No information about voting is ever made public. Further, the structure in which judges decide in chambers and the fact that ‘all judges do not participate in all cases creates the possibility that the Court will not apply the consistently.’For analysis on the trade-off between productivity and consistency of the CJEU’s decisions, see Joshua C. Fjelstul, ‘How the Chamber System at the CJEU Undermines the Consistency of the Court’s Application of EU Law’ (2023) 11 Art. 37 (3) of the Rules of Procedure of the Court of Justice of the European Union. Michal Bobek, ‘The Binding Force of Babel: The Enforcement of EC Law Unpublished in the Languages of the New Member States,’ 9 Nik de Boer, ‘Interview with Judge Sacha Prechal of the European Court of Justice: Part I: Working at the CJEU’ (
A second interim conclusion I have come to is that the reluctance to refer preliminary questions can be viewed as the result of the characteristics of the preliminary ruling, which can trigger an arduous process for national judges when they interpret and apply the ruling towards the facts of the case. Undoubtedly, this is not a factor only Czech judges have to deal with. However, it can noticeably contribute to the low numbers of Czech preliminary questions when combined with the first factor (to the low appreciation of the relevance of EU law and language, and the complexity of the content of the CJEU’s judgments).
Following on from the first two potential reasons, which were slightly more Czech-centric, the third issue can be seen across much of Europe and is related to how a court or tribunal has come to be defined for the purposes of preliminary questions and how that applies to authorities in EU Member States. According to Art. 267 TFEU, only a court or tribunal of an EU Member State is entitled to refer a preliminary question to the CJEU. It stems from the nature of preliminary rulings, which constitute indirect procedure, and its primary aim, which is to help national courts to correctly interpret EU law.
The preliminary question may also ask on the legality of the Union, acts as only the CJEU can decide on the validity of EU norms, and no national court has such competence. It is settled case law that the national court either must regard EU norms as valid, or, in case of doubt, is obliged to refer the question to the CJEU. See Judgment of the Court of Justice of 22 October 1987, Foto-Frost, 314/85, EU:C:1987:452, para 15: ‘On the other hand, those courts do not have the power to declare acts of the Community institutions invalid. As the Court emphasized in the judgment of 13 May 1981 in Case 66/80 International Chemical Corporation v Amministrazione delle Finanze [1981] ECR 1191, the main purpose of the powers accorded to the Court by Article 177 is to ensure that Community law is applied uniformly by national courts. That requirement of uniformity is particularly imperative when the validity of a Community act is in question. Divergences between courts in the Member States as to the validity of Community acts would be liable to place in jeopardy the very unity of the Community legal order and detract from the fundamental requirement of legal certainty.’ Franz C. Meyer, ‘The Ultra Vires Ruling: Decontructing the German Federal Constitutional Court’s PSPP decision of 5 May 2020’ (2020) 16 For example, the judgment of the Court of 13 May 1981, International Chemical Corporation v. Amministrazione delle fianze dello Stato, 66/80, EU:C:1981:102, para 11: ‘The main purpose of the powers accorded to the Court by Article 177 is to ensure that Community law is applied uniformly by national courts. Uniform application of Community law is imperative not only when a national court is faced with a rule of Community law the meaning and scope of which need to be defined; it is just as imperative when the Court is confronted by a dispute as to the validity of an act of the institutions.’
Therefore, it was essential from the outset of the origins of the CJEU to define a national court or tribunal so that a preliminary question can be referred appropriately. The CJEU has established certain institutional criteria that a body must fulfil to be regarded as a court or tribunal within the meaning of Art. 267 TFEU. This includes criteria such as whether the entity is established by law, and whether is permanent; has compulsory jurisdiction; has For example, the Judgment of the Court of Justice of 17 September 1997, Dorsch Consult, C-54/96, EU:C:1997:413, para 23: ‘In order to determine whether a body making a reference is a court or tribunal for the purposes of Article 177 of the Treaty, which is a question governed by Community law alone, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is
The broadening of EU regulations, which today cover growing areas of often highly specialised fields – from financial services, to telecommunications, to energy, transport and so on – triggered the need for the establishment of specialised EU and national supervisory authorities that monitor and provide oversight on relevant stakeholders and their compliance with newly harmonised rules.
For example, the Directive 2012/34/EU of the European Parliament and of the Council of 21 November 2012, establishing a single European railway area established a single national regulatory body for the railway sector. In some areas, already existing national supervisory authorities broadened their supervisory powers to subsume the newly adopted Union regulatory requirements.
It is evident that some national supervisory bodies do not fulfil all the key criteria, especially in regard to independence, meaning that they cannot be regarded as a court or tribunal under Art. 267 TFEU. However, with some national bodies, the issue of meeting the criteria is not so categorical. Recently the CJEU had to decide on the admissibility of a preliminary question brought by the Czech Transport Infrastructure Access Authority (‘TIAA’).
Judgment of the Court of Justice of 3 May 2022, CityRail, C-453/20, EU:C:2022:341.
The TIAA, as a national regulatory body for the railway sector, originates from Directive 2012/34/EU, which declares, ‘this body shall be a stand-alone authority which is, in organisational, functional, hierarchical and decision-making terms, legally distinct and independent from any other public or private entity. It shall also be independent in its organisation, funding decisions, legal structure and decision-making from any infrastructure manager, charging body, allocation body or applicant. It shall furthermore be functionally independent from any competent authority involved in the award of a public service contract.’
See Art. 55 (1) of Directive 2012/34/EU. See Art. 55 (3) of Directive 2012/34/EU. Judgment of the Court of Justice of 22 November 2012, Westbahn Management, C-136/11, EU:C:2012:740.
However, the CJEU, via its Grand Chamber, reconsidered this, and further expanded upon the existing doctrine in relation to the determination of a court or tribunal for the purposes of preliminary rulings. As a result, the CJEU declared that to determine whether a body may refer a case to the CJEU, it needs to fulfil criteria relating both to the constitution of that body and to its function: ‘In that regard, a national body may be classified as a ‘court or tribunal’, within the meaning of Article 267 TFEU, when it is performing judicial functions, but not when exercising other functions, inter alia functions of an administrative nature.’
Judgment of the Court of Justice of 3 May 2022, CityRail, C-453/20, EU:C:2022:34, para 43.
It is true that the request for simultaneous fulfilment of functional criteria is not a complete novelty,
Order of the Court of Justice of 26 November 1999, ANAS, C-192/98, EU:C:1999:589; Judgment of the Court of Justice of 31 January 2013, Belov, C-394/11, EU:C:2013:48; and Judgment of the Court of Justice of 6 October 2021, W.Ż., C-487/19, EU:C:2021:798. The Grand Chamber, between lines, reprimanded the First Chamber, which had decided on the Westbahn Management case by saying that ‘[i]n the judgment of 22 November 2012, Westbahn Management (C-136/11, EU:C:2012:740), relied on by the Authority, the Court, when giving a preliminary ruling on a reference made by the Austrian Rail Supervisory Commission, examined only the criteria arising from the judgment of 30 June 1966, Vaassen-Göbbels (61/65, EU:C:1966:39), and thus did not examine whether that body exercised functions of a judicial nature in the context of the proceedings which gave rise to that request’ (para 47 of the Judgment of the Court of the Court of Justice of 3 May 2022, CityRail, C-453/20, EU:C:2022:34).
Based on the judgment in the CityRail case, an administrative body wishing to refer a preliminary question to the CJEU must not only verify the institutional criteria, but also ‘ascertain the specific nature of the functions which it exercises in the particular legal context in which it is called upon to make a reference’ to the CJEU.
Judgment of the Court of Justice of 3 May 2022, CityRail, C-453/20, EU:C:2022:34, para 44. The decision in case CityRail has been further confirmed by the Order of the Court of Justice of 26 October 2022, Regiojet, C-104/21, EU:C:2022:851.
The second layer of an assessment considers the respective procedures before the institutions, in the context of when they wish to refer a judicial or administrative question for a preliminary ruling. However, the administrative and judicial functions of regulatory bodies cannot always be easily distinguished. Based on the guidance given by the Advocate General, the following questions may help an entity to conclude whether it can, in an Compare the guidance given by the Advocate General Campos Sánchez-Bordona in his Opinion delivered on 16 December 2021, CityRail, C-453/20, EU:C:2021:1018, para 45. Whether the body is empowered to act on its own accord; Whether its function is to review the legality of a decision, or to adopt a position, for the first time, on a complaint made by an individual; Whether it acts as a specialist administrative body, and if it can exercise power to impose penalties in matters falling within its competence and remit; Whether it can decide on matters by performing non-judicial functions, such as functions of an administrative nature; Whether its decisions can be appealed to its President; And lastly, whether the decisions of the body and its President are open to review before an administrative court in which the body would have the status of a defendant or an interested party.
Based on the restrictive interpretation of a court or tribunal within the meaning of Art. 267 TFEU, it is apparent that the majority of preliminary questions are generally referred by traditionally defined courts established within the legal judicial system of an EU Member State. In principle, if a preliminary question concerns the interpretation of EU law and is referred by a court or tribunal of an EU Member State, the CJEU is obliged to answer. However, to do so, the CJEU needs to obtain specific information from the referring court, such as a summary of the subject matter of the dispute, and the relevant findings of fact; the tenor of national provisions applicable in the case; and a statement as to what prompted the referring court to refer the preliminary question.
Art. 94 of the Rules of Procedure of the Court of Justice of the European Union. As CJEU’s Judge Prechal stated, ‘[w]hat is also helpful is when national judges reflect in their reference on the questions related to EU law and explain why there is, in their view, a problem of Union law which needs to be resolved in order to decide the case before them. And if possible, and quite often the German jurisdiction do that, they should indicate what the solutions could be. All this type of information makes it easier for the Court to understand what the problem is. And in this way we can be more supportive and help the national court…’ (see Nik de Boer, ‘Interview with Judge Sacha Prechal of the European Court of Justice: Part I: Working at the CJEU’ (
This issue was on display in relation to a matter once again concerning a railway dispute that was handled at first in front of the TIAA. The decision of the TIAA was subsequently challenged before a District Court in Prague 1. The TIAA proposed that the court refer a preliminary question to the CJEU, and supplemented that request with the formulation of a question and a statement of rationales, on which the court heavily relied and simply forwarded to the CJEU. The CJEU found such an approach to be inadmissible, stating that a ‘document that was supposed to represent the justification of these questions, but in which it simply reproduces the argumentation presented by the Authority. …the referring court merely copied and forwarded to the Court a brief and lacunae summary of the applicable national law, which was additionally provided to it by an entity not participating in the proceedings before it’ (translated from Czech).
Order of the Court of Justice of 2 May 2022, Správa železnic, C-221/21, EU:C:2022:342, paras 9 and 37 (translated from Czech).
The CJEU argued that ‘[a]ccording to the Court’s settled case-law, the procedure established by Article 267 TFEU is an instrument of cooperation between the Court of Justice and national courts, by means of which the Court provides the national courts with the interpretation of EU law which they need to give in order to resolve the dispute before them. In the context of that cooperation, it is for the national court before which the dispute in the main proceedings has been brought, which alone has precise knowledge of the facts of the case and must assume responsibility for the subsequent judicial decision, to determine both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court.’
Order of the Court of Justice of 2 May 2022, Správa železnic, C-221/21, EU:C:2022:342, para 29 (translated from Czech).
With a view toward ensuring the impartiality of judicial proceedings from the actions of administrative bodies, I fully concur with the CJEU’s rejection. Nevertheless, I would not conclude that parties to the main proceeding should not or cannot ask courts to refer preliminary questions and supplement their requests with the potential wording of the question and other vital information, which the referring court will need to provide to the CJEU. To me, the verdict simply means that in the end it is the referring court that remains responsible for the form and content of the preliminary question. Thus, the court cannot fully rely on the requests of others without its own proper assessment, especially if it is requested by an administrative authority deciding on the matter in the first instance.
But what role does this play in the lack of preliminary questions coming to the CJEU from the Czech Republic? As elaborated above, one of the potential ways to increase the number of preliminary questions is to improve understanding of EU law and its application at a national level in the Czech Republic. A better understanding could be achieved with the formation of specialized bodies focusing solely on national and EU regulation in particular fields. As mentioned, some bodies are established based on EU norms, such as the TIAA. However, these types of bodies will generally not be regarded as courts or tribunals within the meaning of Art. 267 TFEU when deciding on disputes, even when a relevance and need for the application of EU legislation exists.
I do not have a clear opinion as to whether administrative bodies should be entitled to table preliminary questions. On one hand, it may speed up the process for individuals if administrative bodies could obtain the required interpretation of EU law needed for
At this point, I would like to briefly address one potential misunderstanding about preliminary rulings when Art. 267 TFEU is examined without any consideration of its context. As explained above, under Art. 267 TFEU, only a court or a tribunal of an EU Member State can refer a question and start a dialogue with the CJEU about the interpretation or validity of EU norms. However, a national court does not take an active part once the preliminary question is tabled. As van Gestel and de Poorter summarise, ‘the preliminary reference procedure does not represent a dialogue going (much) beyond one side asking questions, while the other side tries to answer them,’
Rob Van Gestel and Jurgen De Poorter, ‘Trust and Dialogue’ in See Art. 23 of the Statute of the Court of Justice of the European Union and Art. 96 of the Rules of Procedure of the Court of Justice as of 25 September 2012.
The interpretation given by the CJEU will be binding on the referring court, which will then continue the proceedings to which the participant is a party. Although the CJEU mainly interprets EU law and does not deal with specific cases (which is the remit of the national court), its interpretation can provide clear guidance as to how the referring court should subsequently rule. The CJEU’s preliminary ruling is binding For this reason, the Commission (plus, where appropriate, the EU institution that adopted the law) and the Member States are always informed on all preliminary questions and have the opportunity to submit their observations, which they often do.
Further, the interpretation is binding on all EU Member States. If, for example, it may be inferred from the preliminary ruling that a transposition of a relevant directive in an EU Member State does not correspond to the interpretation made by the CJEU, the EU Member State should remedy this situation post-haste.
In particular, if it would not be possible to bridge the contradiction by an either direct effect or harmonious interpretation, the persons concerned could theoretically claim damages against the Member States, and therefore it is also in the interest of that Member State (besides its Treaties derived obligation to implement EU law correctly) to remedy this situation as soon as possible.
Finally, there is a propensity for international bodies like the CJEU to become isolated from events at a national level. The facts of a case are provided by the referring court, which should be more fully informed about it due to its localized setting. It is therefore appropriate for parties to the main proceeding to indicate to the CJEU harmful and or unintended results that could come from an only partially-informed interpretation of EU law.
When considering the reasons for the low number of preliminary questions from the Czech Republic, one may question whether there is a need for an increase in the first place. One of the main purposes of a preliminary ruling is to unify the interpretation, and correspondingly the application, of EU law in all EU Member States.
According to the Opinion of the Court of Justice of 18 December 2014, Adhésion de l’Union à la CEDH, 2/13, EU:C:2014:2454, para 176, ‘…the judicial system as thus conceived has as its keystone the preliminary ruling procedure provided for in Article 267 TFEU, which, by setting up a dialogue between one court and another, specifically between the Court of Justice and the courts and tribunals of the Member States, has the object of securing uniform interpretation of EU law, thereby serving to ensure its consistency, its full effect and its autonomy as well as, ultimately, the particular nature of the law established by the Treaties.’ Based on the Judgment of the Court of Justice of 30 September 2003, Köbler, C-224/01, EU:C:2003:513, in which the CJEU inferred that Member States are obliged to make good damage caused to individuals by infringements of EU law where the alleged infringement stems from a decision of a court adjudicating at last instance, for example, by not referring the preliminary questions.
It does not mean that national courts and bodies cannot interpret and apply EU law in and of themselves. On the contrary, the basic principles of EU law, such as direct effect and harmonious interpretation, apply to all national bodies bound by EU law due to its primacy. I agree with Vikarská and Dřínovská, who observe that the lack of preliminary questions coming from the Czech Republic could actually mean that Czech judges have a high level of insight into EU norms, so that any help from Luxembourg would be superfluous.
Natalia Dřínovská and Zuzana Vikarská. ‘Evropská zletilost českých (nejvyšších) soudů aneb prvních 18 let předběžných otázek z Brna’ (2023) 31
Should lower courts in EU Member States wish to avoid referral of preliminary questions while assuring the due application of EU law, judges could consider the following checklist when looking to interpret EU norms.
The presented checklist shall be understood more as a guidance than as any binding instruction. Sometimes language versions differ, and thus the preferable interpretation is the one looking for For the
Basic principles stemming from Treaties or the Charter can provide further guidance in the interpretation of norms. Judgments from the CJEU are one of the main sources for interpretation of EU norms. The relevance of CJEU judgements does not relate to the particular provision in question, but to the whole piece of legislation or the regulated area, as EU law does not exist in a silo. Finally, yet importantly, historical context can be an important factor and guide. A comparison of the original and newly adopted EU norms with those they replaced can illuminate the direction the EU started from and is moving toward.
For example, many regulated areas have experienced a shift toward the strengthening of consumer protections.
Undoubtedly, EU law is becoming more and more prevalent in EU Member States as it becomes intertwined and embedded with national law. As many national laws originate in EU norms, a nation’s ability for amendment is constrained. As a result, unified comprehension and interpretation of EU law is vital. Still, the number of preliminary questions coming from Czech courts seems disproportionately low when compared to similar EU Member States. There may be many reasons for this phenomenon, even related to the The original quote: ‘It is really true what philosophy tells us, that life must be understood backwards. But with this, one forgets the second proposition, that it must be lived forwards’ (Soren Kierkegaard, 1843).