Preliminary References as a Right: But for Whom? The Extent to which preliminary Reference Decisions can be Subject to Appeal

Abstract:

Until 2008, it was a widely held view that art. 267 TFEU allowed the Member States' legal systems to give appellate courts the power to overturn or amend lower courts' decisions on whether or not to request a preliminary reference from the Court of Justice. However, with its 2008 ruling in Cartesio, the Court of Justice has made it clear that art.267 TFEU gives individual national courts a right to make a reference, meaning that it is solely for the individual court to decide whether to make such reference and that this right cannot be denied by a superior national court.

The question remains, however, as to what extent the ruling in Cartesio also precludes appeals against a lower court's decision to make a preliminary reference-even where the appellate court's ruling on the matter will not be binding. This article explores these questions and argues that the better solution is to preclude any appeal against a lower court's decision to make a preliminary reference.