The UK Supreme Court and References to the CJEU

Summary:

The purpose of this article is to examine the way in which the UK Supreme Court has negotiated the obligation of referral in dealing with questions of EU law.

The outcome of the referendum of 23 June 2016 on the United Kingdom’s continued membership of the European Union administered a profound shock to the political establishment throughout Europe and beyond. The search for its causes will inevitably be wide-ranging. At the national level, the records of British institutions which have been most closely involved with the EU since UK accession on 1 January 1973 are likely to come under scrutiny. Those institutions include the national courts, which have played a central role in the application of EU law in the UK.

The engagement of the national courts of Member States with the Court of Justice of the EU (CJEU) takes place mainly through the preliminary rulings procedure established by Article 267 TFEU. While most national courts enjoy a discretion in deciding whether to refer a case to the CJEU for a preliminary ruling, national apex courts (courts ‘against whose decisions there is no judicial remedy under national law’) are in principle bound to do so by the third paragraph of Article 267.