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This fully updated and revised second edition of Preliminary References to the European Court of Justice provides a meticulous and yet easily accessible examination of all aspects of the preliminary reference procedure. Since the first edition there have been significant changes to the European Union's legal foundations. First and foremost of those being the signing of the Lisbon Treaty, which has had both direct and indirect consequences for the preliminary reference procedure. In addition, the authors have taken into account amendments to the Rules of Procedure of the Court of Justice and th

AbstractAccording to Article 267 TFEU, a 'court or tribunal of a Member State' can make a preliminary reference to the Court of Justice. The Court applies a single, homogeneous definition of a 'court or tribunal'. This has allowed it to admit references from those specialised, independent, administrative bodies that in several Member States have been established instead of administrative courts to decide claims under public law, including EU law. Whether such a 'dispute settling' body is entitled to submit a preliminary reference normally depends upon whether it commands sufficient 'independence' vis-à-vis both the parties to the dispute and the public administration as such. The Court has tightened these requirements appreciably in connection with the threats against the independence of the judiciary in some Member States, and the consequent more prominent roles that Articles 19 TEU and 47 of the Charter have come to play. Whereas safeguarding the rule of law is of utmost importance, these provisions pursue objectives within the Union's legal order which are materially different from those pursued by Article 267. In this article, it is therefore argued that the Court should apply different constructions of the independence criterion with respect to these provisions.

In its 2021 ruling in Consorzio, the European Court of Justice adopted a more pragmatic approach to its acte clair doctrine. This article analyses this reform and shows that in important respects the Court has eased the requirements for finding a question of EU law to be acte clair. Simultaneously, the Court has introduced a duty for national courts of last instance to give reasons where they are faced with questions of EU law and decide not to make a preliminary reference. The article also considers the Court's discreet change of approach regarding the application (rather than the interpretation) of EU law by national courts of last instance as reflected in the Consorzio ruling, and argues that there is acte clair where the abstract interpretation of EU law is clear and leaves no scope for any reasonable doubt, even if the national court of last instance entertains doubts as to the correct application of said EU law to the case at hand.

When a court or tribunal of an EU Member State is faced with a dispute which gives rise to questions concerning the interpretation or validity of an EU legal measure that must be answered in order for the national court to render its decision, Article 267 of the Treaty on the Functioning of the European Union lays down that, prior to delivering its judgment, this court or tribunal may seek a preliminary ruling from the European Court of Justice. With the increased importance of EU law within those legal fields where arbitration is often used and with the growing number of arbitration proceedings, the preliminary ruling procedure may also be valuable to arbitration tribunals. However, the European Court of Justice has shown a pronounced reluctance when it comes to allowing arbitration tribunals access to use the preliminary reference procedure. This article provides an up-to-date examination of the Court of Justice's approach to preliminary references from arbitration tribunals, and it considers the pros and cons of opening more up for such tribunals using the preliminary reference procedure.

When a case, that is pending before a national court in one of the Member States of the European Union, requires a decision on the interpretation or validity of an EU legal measure, the national court can seek a preliminary ruling on the matter from the European Court of Justice before deciding the main action. In its preliminary ruling, the European Court of Justice establishes authoritatively the interpretation or validity of the relevant EU legislation. When EU law plays a role in commercial arbitration it may be very useful for arbitration tribunals to have access to the preliminary reference procedure. However, according to the Treaty on the Functioning of the European Union, only 'a court or tribunal of a Member State' can make a preliminary reference and this notion does not include commercial arbitration tribunals. In order to give arbitration tribunals access to the preliminary reference procedure Denmark has introduced a scheme which allows them to ask the ordinary Danish courts to make preliminary references on behalf of the arbitration tribunal. This article explains the Danish scheme and considers to what extent it provides a useful model for other Member States.

This text is structured to reflect the different questions that may arise in connection with a preliminary reference. It explains who can make a reference, what questions can be referred, and when can, when should, and when must a reference be made. Thereupon the book provides detailed guidance on the form and contents of the actual reference as well as the procedure, both before the referring court and the European Court of Justice.

I de senere års debat om embedsmænds rådgivning og bistand er det blevet gjort gældende, at kravet om, at embedsmænd skal holde sig inden for lovens rammer, reelt er hult, idet gældende ret giver regeringen mulighed for at slippe afsted med næsten hvad som helst, så længe man ikke handler klart ulovligt. Denne artikel søger at forklare, hvorfor dansk ret sondrer mellem ulovlige og klart ulovlige ordrer, og hvornår denne sondring overhovedet er relevant. Som det vil fremgå, er det forfatternes opfattelse, at dette klarhedskriterium ikke underminerer princippet om en lovmæssig forvaltning, der har pligt til at tale sandt og handle i overensstemmelse med gældende ret.

In recent years' debate on the interaction between ministers and civil servants, it has been argued that the obligation of civil servants to keep within the law is in fact hollow, since the current rules allow the government to get away with just about anything, as long as the actions are not clearly illegal. This article seeks to explain why Danish law distinguishes between illegal and clearly illegal orders, and when this distinction is relevant. It is the authors' opinion that the criterion of clarity does not undermine the principle of a legally bound public administration that has a duty to speak the truth and act in accordance with the law.

In recent years' debate on the interaction between ministers and civil servants, it has been argued that the obligation of civil servants to keep within the law is in fact hollow, since the current rules allow the government to get away with just about anything, as long as the actions are not clearly illegal. This article seeks to explain why Danish law distinguishes between illegal and clearly illegal orders, and when this distinction is relevant. It is the authors' opinion that the criterion of clarity does not undermine the principle of a legally bound public administration that has a duty to speak the truth and act in accordance with the law.

Cet ouvrage est la traduction actualisée du Preliminary References to the European Court of Justice paru en 2010 chez Oxford University Press. Il fournit un examen détaillé et complet de tous les aspects pertinents relatifs à un renvoi préjudiciel. Il reflète les différentes questions qui peuvent se poser dans le cadre d'un tel renvoi.Qui peut introduire ce renvoi ? Quelles questions peuvent être posées ? Quand cette procédure peut, devrait ou doit être introduite ?L'ouvrage fournit des indications détaillées sur la forme et le contenu du renvoi préjudiciel ainsi que la procédure tant devant