Institutional Architecture, Admissibility, and the Evolving Role of the National Court
The preliminary reference procedure stands as one of the foundational pillars of the European Union’s constitutional architecture. Codified in Article 267 of the Treaty on the Functioning of the European Union (TFEU), it establishes a mechanism of judicial dialogue through which national courts – ordinary, administrative, and, under certain conditions, other adjudicatory bodies – may refer questions of EU law interpretation or the validity of secondary legislation to the Court of Justice of the European Union (CJEU). The procedure operates not as an appellate remedy, but as an instrument of cooperative constitutionalism: the national court poses the question, the Court of Justice furnishes the authoritative interpretation, and the referring court applies that interpretation to the dispute pending before it.
It bears emphasis at the outset that the preliminary reference is not a means by which the CJEU reviews, revises, or overturns a national court’s judgment. The Court of Justice neither adjudicates facts nor applies law to the particular case. The institutional division of labour is clear: the CJEU interprets; the national court disposes. Any characterisation of the preliminary reference as a species of “appeal” to Luxembourg fundamentally misapprehends the nature of the procedure.
The material scope of the preliminary reference encompasses virtually the entirety of EU law, with the sole exception of the Common Foreign and Security Policy. In practice, references most frequently arise in the domains of tax law (VAT, excise duties, direct taxation), consumer protection, employment law, competition, the free movement of goods and services, and – with increasing prominence in recent years – judicial independence and the rule of law.
Standing to Refer: The Exclusive Prerogative of the National Court
The power to submit a preliminary reference belongs exclusively to the national court seized of the dispute. A party to litigation – whether an undertaking, a consumer, or a public authority – cannot independently address a question to the CJEU. What a party can do, however, is petition the court to make a reference, for example in a procedural pleading, an appeal brief, or a cassation complaint. The ultimate decision rests with the court.
Article 267 TFEU establishes a binary framework. Courts whose decisions remain subject to further judicial review enjoy the discretion – but bear no obligation – to make a reference. Courts of last resort, by contrast, are under a duty to refer where the resolution of a question of EU law is necessary for the determination of the case. In the Polish context, this distinction maps onto the Supreme Court (*Sąd Najwyższy*) and the Supreme Administrative Court (*Naczelny Sąd Administracyjny*) on the one hand, and lower courts on the other.
The obligation incumbent upon courts of last resort is not, however, absolute. The *CILFIT* doctrine – articulated by the Court of Justice in 1982 and refined in subsequent case law – recognises two exceptions. A court of last resort may decline to refer where the correct interpretation of the provision in question is so obvious as to leave no scope for any reasonable doubt (*acte clair*), or where the CJEU has already furnished an authoritative answer to an identical or materially analogous question (*acte éclairé*). As the Supreme Administrative Court observed in its judgment of 17 May 2017 (II GSK 2170/15), the mere invocation of an EU law issue by a party to proceedings does not, without more, give rise to an obligation to refer.
It warrants noting that the concept of a “court or tribunal” within the autonomous meaning of Article 267 TFEU does not invariably correspond to what national law designates as such. Whether a given body qualifies as a referring court is determined by reference to objective criteria developed in the case law: establishment by law, permanence, compulsory jurisdiction, an inter partes procedure, the application of rules of law, and independence.
Admissibility: The Conditions Under Which the Court of Justice Will Entertain a Reference
Not every question submitted to Luxembourg will receive an answer. The CJEU has elaborated a set of admissibility requirements, the non-fulfilment of which results in the rejection of the reference.
Lis pendens before the national court. This is the threshold condition. A preliminary reference may be submitted at any stage of proceedings – from first instance to cassation – provided the case remains pending before the referring court. Once a final judgment has been rendered and no proceedings are afoot, there exists no court capable of making the reference. The CJEU has consistently emphasised that a preliminary ruling must be “necessary” for the “delivery of judgment” in the pending case.
The prohibition on hypothetical questions. The Court of Justice declines to answer questions bearing no genuine nexus to the dispute before the referring court. In its judgment of 18 December 2025 (Case C-259/24), the Court declared a reference inadmissible “in its entirety on the ground of the hypothetical nature of the first question, from which the other two questions referred stem.” Similarly, in Case C-514/23 (judgment of 1 August 2025), the Court held that a request for a preliminary ruling is inadmissible “where the interpretation of a provision of EU law is of no relevance to the resolution of the dispute in the main proceedings.”
Formal requirements of the order for reference. Pursuant to the Court’s Recommendations to national courts concerning the initiation of preliminary ruling proceedings (OJ 2019, C 380, p. 1) – confirmed in the judgment of 3 April 2025 (Case C-701/23) – the order for reference must contain a succinct account of the subject matter of the dispute and the relevant findings of fact; the text of the applicable national provisions and, where appropriate, an indication of relevant national case law; a statement of the reasons that prompted the referring court to inquire into the interpretation of the EU provisions in question; and an explanation of the relationship between those provisions and the national legislation applicable to the proceedings.
A reference is likewise inadmissible where the referring court fails to furnish the Court of Justice with the factual and legal context necessary for a useful answer – as confirmed in Case C-497/12 (judgment of 2 July 2015).
Procedural Course: From Reference to Ruling
Upon the submission of a preliminary reference, the national proceedings are stayed pending the Court’s response. The referring court may, however, continue to conduct procedural acts that do not conflict with the preliminary reference procedure.
The parties to the national proceedings are notified of the reference and may, within a period of two months, submit written observations to the CJEU. Critically, however, the parties are not formally parties to the preliminary reference proceedings before the Court – they participate only to the extent of filing observations.
Duration. The standard preliminary reference procedure takes approximately fifteen to eighteen months from the lodging of the order for reference to the delivery of judgment. This timeline constitutes a material consideration for any undertaking or individual assessing the advisability of requesting a reference.
Accelerated and urgent procedures. The Rules of Procedure of the Court of Justice provide two departures from the standard timeline. The accelerated procedure (Articles 105–106) may be applied in exceptional circumstances where the nature of the case demands a prompt resolution – at the discretion of the Court. The urgent preliminary ruling procedure (PPU, Articles 107–114) is reserved for cases within the Area of Freedom, Security, and Justice, particularly where the liberty of an individual is at stake. While the national court may request the application of either procedure, the grant of such a request is by no means assured.
The Interplay Between Judicial Duty and Litigant Initiative
The relationship between the court’s obligation and the party’s initiative demands careful delineation. Article 267 TFEU is addressed to courts, not to litigants. Nonetheless, procedural practice has developed concrete mechanisms through which a party may effectively exercise influence.
First, a litigant may file a procedural application requesting that the court submit a preliminary reference, identifying the specific EU provision whose interpretation is in question and articulating why the CJEU’s guidance is necessary for the disposition of the case. A lower court evaluates such an application in the exercise of its discretionary authority.
Second, where a court of last resort refuses to refer notwithstanding the fulfilment of the conditions of Article 267 TFEU, such refusal may itself constitute a breach of EU law. The Court of Justice has affirmed this principle on multiple occasions, including in its judgment of 1 October 2015 (Case C-452/14), where it held that “a court against whose decisions there is no judicial remedy under national law is required, in circumstances such as those in the main proceedings, to make a reference to the Court of Justice for a preliminary ruling.” In Case C-160/14 (judgment of 9 September 2015), the CJEU further specified that this obligation arises with particular force where “there have been divergent decisions concerning the interpretation of that concept by lower courts” and where “there are recurring difficulties in its interpretation in various Member States.”
Third, Article 267 TFEU safeguards the national court’s right to refer against constraints imposed by domestic law. In Case C-689/13 (judgment of 5 April 2016), the Court held that Article 267 TFEU “precludes the application of a provision of national law, in so far as that provision is interpreted as meaning that a chamber of a court of last instance which does not share the approach adopted by a ruling of the full court must refer the question to the full court and is thereby precluded from making a reference for a preliminary ruling to the Court of Justice.” By the same token, in Case C-112/13 (judgment of 11 September 2014), the CJEU determined that EU law precludes a national rule requiring courts to submit a question of constitutionality to the constitutional court rather than making a preliminary reference, where the priority accorded to the constitutional review procedure would impede the exercise of the court’s power or duty under Article 267 TFEU.
The Polish Dimension: 2024–2026
Poland ranks among the Member States that make extensive use of the preliminary reference procedure, both in substantive fields such as tax and consumer law and in the constitutionally charged area of judicial independence.
In its judgment of 18 December 2025 (Case C-448/23), the Court of Justice held that the rulings of the Polish Constitutional Tribunal (*Trybunał Konstytucyjny*) of 7 October 2021 (K 3/21) and 14 July 2021 (P 7/20) – which purported to deny the primacy of EU law and the binding force of CJEU judgments – were “manifestly incompatible with the requirements inherent in Article 19(1), second subparagraph, TEU.” The Court affirmed that “provisions of the national legal order, even those of constitutional rank, cannot justify failure to comply with the obligations” deriving from EU law. In the same judgment, the CJEU found that, by reason of irregularities in the appointment procedures of three members of the Constitutional Tribunal in December 2015, that body “does not meet the requirements of an independent and impartial tribunal previously established by law.”
In the domain of consumer protection, the judgment of 12 February 2026 (Case C-471/24) addressed the transparency requirements governing variable-rate mortgage contracts based on the WIBOR benchmark rate. In Case C-320/24 (judgment of 18 December 2025), the Court held that the principle of res judicata cannot preclude a national court from examining of its own motion whether a contractual term is unfair – even where the consumer failed to raise this issue at earlier stages of the proceedings.
The 2024 Reform: Reallocation of Preliminary Reference Jurisdiction to the General Court
With effect from 1 October 2024, an amendment to the Statute of the CJEU transferred preliminary reference jurisdiction in selected subject areas from the Court of Justice to the General Court (formerly the Court of First Instance). The transfer encompasses, inter alia, cases concerning VAT, excise duties, the Customs Code, and emissions trading.
This reform carries significant implications for practitioners and tax advisors. In matters falling within the transferred competence, it is the General Court – not the Court of Justice – that will deliver the preliminary ruling. The Court of Justice retains jurisdiction over requests for urgent preliminary rulings (PPU) and over matters not covered by the transfer.
The reform aims to alleviate the workload of the Court of Justice and to reduce the duration of preliminary reference proceedings. For practitioners, it necessitates careful attention to the new jurisdictional allocation when drafting orders for reference.
Practical Significance for Undertakings and Individuals
The preliminary reference procedure is not an abstraction confined to legal scholarship. It bears directly upon the legal position of undertakings, consumers, and individuals engaged in cross-border economic activity.
An undertaking contesting a tax authority’s interpretation of the VAT Directive may, through an administrative court, secure a binding CJEU interpretation that determines the outcome of the dispute. A consumer challenging a mortgage term as unfair may invoke the body of preliminary rulings under Directive 93/13. A posted worker may rely on the CJEU’s interpretation of the applicable law – as in Case C-485/24 (judgment of 11 December 2025), which clarifies the criteria for determining the habitual place of work.
For entities with cross-border structures – family foundations, holding companies, fintech operators – the preliminary reference jurisprudence delineates the permissible boundaries of tax planning and regulatory compliance. The judgment of 13 November 2025 (Case C-142/24), addressing the taxation of asset transfers to family foundations, and the judgments of 23 October 2025 concerning VAT on factoring transactions (Case C-232/24) and VAT refunds on intra-Community supplies (Case C-234/24), have immediate and concrete relevance to the structuring decisions of Polish entrepreneurs.
The Supreme Administrative Court has acknowledged the stature of preliminary rulings within the Polish legal order. As it observed in its judgment of 5 April 2017 (I FSK 1423/15): “The case law of the Court of Justice of the EU holds an exceptionally significant position within the system of EU law sources. The judgments of the Court have the character of precedents that shape EU interpretive standards.”
How We Can Assist
Skarbiec Law Firm advises clients at every stage of the preliminary reference procedure: from assessing whether the circumstances of a particular case warrant a reference, through the preparation of the procedural application to the national court, to the submission of written observations before the Court of Justice and the application of the CJEU’s ruling in the subsequent domestic proceedings.
If your litigation turns on a question of EU law interpretation, we invite you to contact us.
