Eppur Si Muove! The Past, Present, and (possible) Future of Temporal Limitations in the Preliminary Ruling Procedure

Summary:

On the occasion of the fourtieth anniversary of the seminal ruling in Case 43/75 (Defrenne v Sabena), this article scrutinzes the European Court of Justice (ECJ) case law on temporal limitations of preliminary rulings inaugurated back then. It shows that both the justification and confines of the Court’s temporal limitation doctrine lie in the shared responsibility of national judges and the ECJ for protecting legitimate expectations within their respective domains of interpretation and application of EU law. The boundaries between them are thus retraced. It is also submitted that the overly strict Defrenne doctrine and the more flexible analogous application of Article 264(2) Treaty on the Functioning of the European Union (TFEU) to findings of invalidity may eventually converge and cross-fertilize each other. A more liberal approach towards temporal limitations could be envisaged as long as the specific judicial protection function of the preliminary ruling procedure is maintained.