Preliminary reference to the Court of Justice

A preliminary reference is the mechanism by which a court of a Member State asks the Court of Justice of the European Union (« CJEU ») about the interpretation of the Treaties and of acts of the Union, or about the validity of those acts, where the answer is necessary to decide the dispute before it (Article 267 TFEU). In intellectual property, where national rules largely transpose directives and coexist with regulations, references have shaped most of trade mark law, copyright and design law as applied by the French courts.

Courts and questions concerned

Any national court may refer to the CJEU where it considers that a decision on the interpretation of Union law is necessary. Courts against whose decisions there is no judicial remedy under national law, in France the Court of Cassation and the Conseil d’État, are required to refer, unless the question is irrelevant, the provision has already been interpreted by the CJEU or its correct application is so obvious as to leave no scope for any reasonable doubt. The Unified Patent Court, a court common to the Contracting Member States, is subject to the same mechanism, which opens a new channel for the interpretation of the unitary patent regulation, the rules on supplementary protection certificates or Directive 2004/48/EC.

Conduct of the reference

The national court frames the questions in a reasoned decision setting out the factual and legal context of the dispute and the reasons for the reference, then stays the proceedings. The Court of Justice receives the observations of the parties, the Member States and the Commission, hears the Advocate General where appropriate and gives judgment, the procedure lasting on average a little over a year. An expedited procedure and, in the area of freedom, security and justice, an urgent procedure are available. The CJEU does not decide the dispute or characterise the facts, but it provides the national court with guidance on interpretation, sometimes so precise that it dictates the outcome.

Effects of the judgment

The judgment binds the referring court and all courts dealing with an identical question, the interpretation adopted becoming part of the rule interpreted with retroactive effect, unless the CJEU limits it in time. The parties have no right to a reference, and a refusal to refer is not in itself a ground of appeal, except before a court of last instance that disregards its obligation, which may give rise to State liability. Direct actions against EUIPO decisions are, for their part, brought before the General Court of the European Union and not by way of preliminary reference.

Key points

A preliminary reference enables the national court to obtain from the CJEU the interpretation of the Union law applicable to the dispute, the judgment then binding all courts. Supreme courts are obliged to refer, save where the answer is clear or the question has already been decided. Identify at first instance the questions of interpretation that may warrant a reference and propose precise wording of the questions to the court, since the drafting steers the answer.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats litigates patent disputes before the Paris Judicial Court, the Paris Court of Appeal and the Unified Patent Court. When the question arises in a real case, the right moment is almost always before proceedings are issued.

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