Urgent preliminary ruling procedure and expedited procedure

Summary:

In order to ensure that cases can be dealt with more expeditiously if required, Article 23a of the Statute of the Court of Justice of the European Union provides:

The Rules of Procedure may provide for an expedited or accelerated procedure and, for references for a preliminary ruling relating to the area of freedom, security and justice, an urgent procedure. Those procedures may provide, in respect of the submission of statements of case or written observations, for a shorter period than that provided for by Article 23, and, in derogation from the fourth paragraph of Article 20, for the case to be determined without a submission from the Advocate General. In addition, the urgent procedure may provide for restriction of the parties and other interested persons mentioned in Article 23, authorised to submit statements of case or written observations and, in cases of extreme urgency, for the written stage of the procedure to be omitted.

An expedited or accelerated procedure has existed since 2000 and is now governed by Article 105 et seq. of the Rules of Procedure of the Court of Justice in the case of references for a preliminary ruling, and by Article 133 et seq. of those Rules in the case of direct actions. The expedited procedure can be applied irrespective of the type of proceedings, if the nature of the case requires that it be dealt with within a short time. The request that a case be dealt with pursuant to an expedited procedure is made by the referring court or tribunal, in the case of a reference for a preliminary ruling, and by the applicant or the defendant, in the case of a direct action. The decision is taken by the President of the Court, after hearing the Judge-Rapporteur, the Advocate General and, where appropriate, the other party to the proceedings. Exceptionally, the President of the Court may also decide of his own motion to apply the expedited procedure. Until January 2019, the President of the Court ruled by order in response to any request for the expedited procedure. That practice was abandoned, however, and, since February 2019, the practice has been to mention briefly the reasons for acceptance or refusal in the decision which closes the proceedings.

The urgent preliminary ruling procedure is more recent, having been established in 2008 in response to the extension of the powers of the European Union and jurisdiction of the Court in the area of freedom, security and justice. Given the particularly sensitive nature of that field, it seemed necessary to introduce a specific exceptional procedure that would enable the interests at stake to be protected if necessary. Thus, unlike the expedited procedure, which can be applied in all areas of EU law and to any type of proceedings, the urgent preliminary ruling procedure, governed by Article 107 et seq. of the Rules of Procedure of the Court, is reserved for references for a preliminary ruling that raise questions in the areas covered by Title V of Part Three of the Treaty on the Functioning of the European Union (FEU Treaty), relating to the area of freedom, security and justice.

The decision as to whether or not to grant a request from a referring court or tribunal that a case be dealt with under the urgent preliminary ruling procedure is taken by a Chamber specially designated by the Court, and no reasons are given. However, if the request for an urgent preliminary ruling procedure is granted, the Court, when issuing its substantive ruling, will often summarise the arguments of the referring court or tribunal justifying the use of that procedure. Moreover, where the referring court or tribunal does not request the urgent preliminary ruling procedure but that procedure does, on the face of it, seem to be required, the President of the Court can ask the competent Chamber to consider the need for the reference to be determined pursuant to the urgent preliminary ruling procedure, which can then be applied of the Court’s own motion.

It should further be noted that the provisions governing the expedited procedure and the urgent preliminary ruling procedure do not set out in detail the circumstances in which those procedures are intended to be used. Only the fourth paragraph of Article 267 TFEU expressly mentions a situation requiring the Court to act ‘with the minimum of delay’, that is where a question referred for a preliminary ruling is raised in a case with regard to a person in custody. In the absence of additional guidance, the purpose of this fact sheet is to present cases that are representative of the procedures applied by the Court and which enable the reasons that may justify the application of the urgent preliminary ruling procedure or of the expedited procedure to be better understood.