TY - JOUR

T1 - European Court of Justice versus Member State Courts: Who Decide What?

T2 - Preliminary rulings concerning the application of EU law in the main proceedings

AU - Broberg, Morten

AU - Fenger, Niels

PY - 2023

Y1 - 2023

N2 - Over the last quarter of a century, the European Court of Justice has shown itself willing to admit very specific preliminary questions – and in its preliminary rulings has been ready to give answers which might have an abstract appearance, but which in reality have amounted to specific applications to the facts of the case before the referring court. However, beginning sometime in 2020 it seems that the Court has ceased using a previously often used formulation of the preliminary ruling’s operative part that implied that the abstract interpretation would be tightly tied to the facts of the case before the referring court. Moreover, in its seminal 2021-ruling in Consorzio, the Court not only overhauled the workings of its acte clair doctrine, but also included a discreet change regarding the very formulation of the doctrine. Thus, whereas prior to Consorzio the Court’s judgments would refer to both the ‘interpretation’ and the ‘application’ of EU law, in Consorzio it omitted references to ‘application’. When deciding whether an EU rule is acte clair, it is therefore only the interpretation that matters meaning that it is necessary to distinguish between ‘interpretation’ of EU law on the one hand and ‘application’ of EU law to the facts of the main action on the other.

AB - Over the last quarter of a century, the European Court of Justice has shown itself willing to admit very specific preliminary questions – and in its preliminary rulings has been ready to give answers which might have an abstract appearance, but which in reality have amounted to specific applications to the facts of the case before the referring court. However, beginning sometime in 2020 it seems that the Court has ceased using a previously often used formulation of the preliminary ruling’s operative part that implied that the abstract interpretation would be tightly tied to the facts of the case before the referring court. Moreover, in its seminal 2021-ruling in Consorzio, the Court not only overhauled the workings of its acte clair doctrine, but also included a discreet change regarding the very formulation of the doctrine. Thus, whereas prior to Consorzio the Court’s judgments would refer to both the ‘interpretation’ and the ‘application’ of EU law, in Consorzio it omitted references to ‘application’. When deciding whether an EU rule is acte clair, it is therefore only the interpretation that matters meaning that it is necessary to distinguish between ‘interpretation’ of EU law on the one hand and ‘application’ of EU law to the facts of the main action on the other.

M3 - Journal article

SP - 27

EP - 43

JO - Yearbook on Procedural Law of the Court of Justice of the European Union

JF - Yearbook on Procedural Law of the Court of Justice of the European Union

SN - 2309-0227

IS - 4

M1 - Chapter 2

ER -