Ithas been said that without the preliminary references procedure provided for byArt267 that ‘the roof would collapse’.
1It is the Jewel in the Crown of EUlaw and the most important of the three functions. Art267 has been of seminal importance in defining the relationshipbetween the EU and MS. The relationship is purely reference-based. Itestablishes a mechanism to interact and engage in discourses in such a waywhere the appropriate reach of EU law is established. This procedure has beencritically important in developing concepts such as ‘direct effect’, where the landmark decision in Van Gend established that an EU provision may giveindividuals the right2to bring an action in their national courts.
It is a platform for testing theconcept of ‘indirect effect’.3 Althoughan individual can challenge the legality of EU law under Art263, therules relating to access to courts is restrictive and Art267 may seemthe only way to challenge such a measure. Even when the ECJ has no jurisdictionto decide upon the validity of a national law, the judges feel duty-bound toprovide guidance as to how a domestic law might be compatible with an EUprovision.4 When an EU law is inconflict with the national law, it is through this preliminary ruling procedurethat the ECJ has exerted its influence over the national courts which has givenrise, arguably to the concept of ‘supremacy’,5Due to the original nature of EU law, it cannot be overridden by any nationalmeasure.6 Basedon how the two legal systems are fashioned, this is the principal vehicle ofcommunication. The conception of the relationship between the ECJ and the nationalcourts has changed over time. A once horizontal-bilateral relationship, whereboth legal system were separate but equal has become more vertical-multilateral.Recent developments suggest the verticality of the relationship where the ‘national courts are the enforcers of EU lawwith the ECJ sitting at its apex’.
7 It has become multilateral whererulings from one MS has been held to have either a de facto or de jure effecton other national courts. Recentstatistics8 further endorses itsimportance. 470 out of 704 cases received in 2016 were requests for a preliminaryruling. The shortest time on record for proceedings was established at 15months.9 This reflects the trustand importance placed in the judicial cooperation between the national courtsand the ECJ, uniform interpretation and application of EU law. 1 G.
F.Mancini, D.T. Keeling, From CILFIT to ERT: The Constitutional ChallengeFacing the European Court, in Yearbook of European Law, 1991,p.
1 et seq., pp. 2-3.
2Subject to certain conditions3Interpretation of national law in line with directives4 Courtof Justice, judgment of 12 September 1996, joined cases C-254/94, C-255/94 andC-269/94, Fattoria autonomia tabacchi et al., para. 275 FMancini and D Keeling, From CILFIT to ERT: The Constitutional Challenge Facingthe European Court, 1991 11YBEL 1, 2-56 Case 6/64 Flaminio Costa v ENEL 1964ECR 5857Report of the Court of Justice on Certain Aspects of the Application of theTreaty on European Union (1995) 11 – 158 Courtof Justice of the European Union PRESS RELEASE No 17/17 Luxembourg, 17 February2017, Statistics concerning judicial activity in 2016: the duration ofproceedings continues its downward trend, to the benefit of citizens.
9 Ibid,In the case of references for apreliminary ruling, in 2016 the average duration of proceedings was 15 months.This constitutes the shortest duration recorded for more than 30 years