The preliminary ruling procedure

At this point, it should be recalled that, in accordance with the art 19 of the TEU, it is for national courts and the CJEU to ensure the full application of EU law in all Member

22 Badó (n 19) vii.

23 59/2018 (V. 2.) and 60/2018 (V. 2.) OBT decision.

24 Act CLXI of 2011 on the Organization and Administration of Courts, Chapter VIII. 33.

25 Act CLXII of 2011 on the Status and Remuneration of Judges.

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States and judicial protection of the rights of the individual under that law. In other words, an important reason for the existence of the CJEU is to uphold the rule of law.

In particular, the judicial system has as its keystone the preliminary ruling procedure provided in art 267 of the Treaty on the Functioning of the European Union (TFEU), which, by setting up a dialogue between the CJEU and the courts of the Member States, has the object of securing uniform interpretation and application of EU law. This mechanism guarantees that citizens across the EU enjoy equal protection under EU law.²⁶

Art 267 TFEU affirms that ‘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’. Subparagraph 2 says 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.’ According to subparagraph 3 of art 267 TFEU ‘where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.’

As Lenaerts observes the Member States’ courts are not only courts of national law but also courts of EU law.²⁷ By applying EU law in disputes submitted to them, they play a key role in guaranteeing effective protection of the rights that EU law confers on individuals, and in protecting the rule of law within the EU legal order. The dialogue established by the preliminary ruling procedure is key to the uniform interpretation of EU law. Whenever a national court has doubts as to how an EU act should be interpreted, it is entitled to seek guidance from the CJEU and the answer has authority not only in the main proceedings but also in all cases where that same act applies. The preliminary ruling mechanism is therefore essential for ensuring protection of the rights that EU law confers on individuals for upholding the rule of law within the EU.

Examining the case law of the CJEU regarding the preliminary ruling procedure it is important to refer to the judgement of the Cartesio case because in a broad context this case was a prelude to the case of the present study. The CJEU in a preliminary ruling procedure initiated by a Hungarian court, affirmed that according to the case-law, in the case of a court or tribunal against whose decisions there is a judicial remedy under national law, art 267 TFEU does not preclude decisions of such a court by which questions are referred to the Court for a preliminary ruling from remaining subject to

26 Koen Lenaerts, Overview of the case law of the Court of Justice of the European Union with respect to the rule of law, Rule of law in Europe perspective from practitioners and academics, EJTN 2019, <https://

www.ejtn.eu/PageFiles/19061/2019-056-RoL%20Manual-170x240-WEB_FINAL.pdf> accessed 1 August 2021, 72.

27 ibid. 72.

Can a Judge Protect the Independence of the Judiciary? i97 the remedies normally available under national law. Nevertheless, the outcome of such

an appeal cannot limit the jurisdiction conferred by art 267 TFEU on that court to make a reference to the CJEU if it considers that a case pending before it raises questions on the interpretation of provisions of EU law necessitating a ruling by the Court.

The Court has thus held that jurisdiction cannot be called into question by the application of rules of national law which permit the appellate court to vary the order for reference, to set aside the reference and to order the referring court which adopted that order to resume the domestic law proceedings. In accordance with art 267 TFEU, the assessment of the relevance and necessity of the question referred for a preliminary ruling is, in principle, the responsibility of the referring court alone, subject to the limited verification made by the CJEU in accordance with the case-law cited. Thus, it is for the referring court to draw the proper inferences from a judgment delivered on an appeal against its decision to refer and, in particular, to come to a conclusion as to whether it is appropriate to maintain the reference for a preliminary ruling, or to amend it or to withdraw it.²⁸

As we have already mentioned earlier, the judgement in the case Associação Sindical dos Juízes Portugueses v Tribunal de contas took a huge step towards the protection of judicial independence and pivotal in the CJEU’s reasoning is the link between judicial independence and the procedure for a preliminary ruling. The CJEU noted regarding the concept of independence presupposes that the body concerned exercises its judicial functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever, and that it is thus protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions.²⁹

An important guidance regarding the final conclusions of our case study is, that it is essential to the proper functioning of the judicial cooperation system embodied by the preliminary ruling mechanism under art 267 TFEU that only national bodies that satisfy the criterion of independence may refer questions to the CJEU for a preliminary ruling. The logic of it is simple: no hindrance should result from pressure exercised on the judge to refer or not to refer a request for a preliminary ruling to the CJEU, or to ask a specific question instead of another one and only independent courts can ensure the proper implementation of preliminary rulings. It follows that only national courts that are genuinely independent may have recourse to the preliminary ruling mechanism in order to engage in a dialogue with the Court of Justice.³⁰

28 Cartesio Oktató és Szolgáltató Bt., case C-210/06, ECLI:EU:C:2008:723,16 December 2008, paras. 89, 93, 95, 96, 98.

29 Associação Sindical dos Juízes Portugueses, case C-64/16, 27 February 2018, para 44.

30 Lenaerts (n 26) 74.

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