which are the features of preliminary ruling

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1. Which are the features of preliminary ruling?

Preliminary ruling

The reference for a preliminary ruling is a procedure exercised before the Court of Justice of the

European Union. This procedure enables national courts to question the Court of Justice on the

interpretation or validity of European law.

This procedure is open to all Member States’ national judges. They may refer a case already underway

to the Court in order to question it on the interpretation or validity of European law.

In contrast to other judicial procedures, the reference of a preliminary ruling is therefore not a recourse

taken against a European or national act, but a question presented on the application of European law.

The reference for a preliminary ruling thus promotes active cooperation between the national courts

and the Court of Justice and the uniform application of European law throughout the EU.

There are two types of reference for a preliminary ruling:

a reference for a ruling on the interpretation of the European instrument: the national judge requests

the Court of Justice to clarify a point of interpretation of European law in order to be able to apply it

correctly;

a reference for a preliminary ruling on the validity of the European instrument: the national judge

requests the Court of Justice to check the validity of an act of European law.

The reference for a preliminary ruling is therefore a reference "from one judge to another".

Although a referral to the Court of Justice may be requested by one of the parties involved in the

dispute, the decision to do so rests with the national court. In this respect, Article 267 of the Treaty on

the Functioning of the EU specifies that national courts which act as a final resort, against whose

decisions there is no judicial remedy, are obliged to exercise the reference for a preliminary ruling if one

of the parties requests it. In contrast, national courts which are not a final resort are not obliged to

exercise the reference for a preliminary ruling even if one of the parties requests it. In any case, allnational courts must immediately refer a matter to the Court of Justice in cases of doubt regarding a

European provision.

The Court of Justice therefore only gives a decision on the constituent elements of the reference for a

preliminary ruling made to it. The national court therefore remains competent for the original case.



On principle, the Court of Justice must answer the question put to it. It cannot refuse to answer on the

grounds that this response would be neither relevant nor timely as regards the original case. It can,

however, refuse if the question does not fall within its sphere of competence.

The Court of Justice Decision has the force of res judicata. It is, furthermore, binding not only on the

national court on whose initiative the reference for a preliminary ruling was made but also on all of the

national courts of the Member States.

In the context of a reference for a preliminary ruling concerning validity, if the European instrument is

declared invalid all of the instruments adopted based on it are also invalid. It then falls to the competent

European institutions to adopt a new instrument to rectify the situation.

2

A preliminary ruling is a decision of the European Court of Justice on the interpretation of European

Union law, made at the request of a court of a European Union member state. They are called

preliminary rulings because the referring national court, which remains responsible for resolving the

specific dispute before it, will stay its own proceedings until its question(s) about the interpretation or

validity of EU law have been answered. Preliminary rulings can also be made, in certain circumstances,

by the European General Court, although most are made by the ECJ.

A request (or reference) for a preliminary ruling is made by submitting questions to the ECJ for

resolution. However, questions are not answered in abstraction, but rather are submitted together with

the circumstances leading up to their being asked. Thus, whilst the ECJ is limited to deciding the law in

question, the ECJ's ruling frequently leaves little room to rule other than in a certain way. The ECJ may

also decline to give judgement in the absence of a genuine dispute.

Article 267 of the Treaty on the Functioning of the European Union states the following:

"The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings

concerning:

(a) the interpretation of the Treaties;

(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;



Where such a question is raised before any court or tribunal of a Member State, that court or tribunal

may, if it considers that a decision on the question is necessary to enable it to give judgment, request

the Court to give a ruling thereon.

Where any such question is raised in a case pending before a court or tribunal of a Member State

against whose decisions there is no judicial remedy under national law, that court or tribunal shall bringthe matter before the Court.

If such a question is raised in a case pending before a court or tribunal of a Member State with regard to

a person in custody, the Court of Justice of the European Union shall act with the minimum of delay."

What constitutes a "court or tribunal" is a matter of Union law and it is not to be determined by

reference to national law.[2] In determining whether or not a body is a "court or tribunal of Member

State" the European Courts will take a number of issues into account, namely whether—

it is established by law,

it is permanent,

its jurisdiction is permanent,

it has an inter partes procedure,

it applies rules of law, and

it is independent.[3]

However, these criteria are not absolute. In Broekmeulen v Huisarts Registratie Commissie[4] the ECJ

ruled that a body established under the auspices of the Royal Medical Society for the Promotion of

Medicine was a "court or tribunal" within the meaning of the treaty, even though that society was a

private association. Also the Benelux Court of Justice was considered a court within this context, as a

court common to several (Netherlands, Belgium, Luxembourg) Member States.



Union Royale Belge des Sociétés de Football Association ASBL v Jean-Marc Bosman (1995) C-415/93

(known as the Bosman ruling)[1] is a 1995 European Court of Justice decision concerning freedom of

movement for workers, freedom of association, and direct effect of article 39[2] (formerly 48) of the EC

Treaty. The case was an important decision on the free movement of labour and had a profound effecton the transfers of football players within the European Union (EU).

The decision banned restrictions on foreign EU players within national leagues and allowed players in

the EU to move to another club at the end of a contract without a transfer fee being paid.

The ruling was made in a consolidation of three separate legal cases, all involving Belgian player Jean-

Marc Bosman:

Belgian Football Association v Jean-Marc Bosman

R.F.C. de Liège v Jean-Marc Bosman and others

UEFA v Jean-Marc Bosman

Jean-Marc Bosman was a player for RFC Liège in the Belgian First Division in Belgium whose contract had

expired in 1990. He wanted to change teams and move to Dunkerque, a French team. However,

Dunkerque refused to meet his Belgian club's transfer fee demand, so Liège refused to let him go.[3]

In the meantime, Bosman's wages were reduced as he was no longer a first-team player.[4] He took his

case to the European Court of Justice in Luxembourg and sued for restraint of trade citing FIFA's rules

regarding football, specifically Article 17.

Judgment

On 15 December 1995 the court ruled that the system, as it was constituted, placed a restriction on the

free movement of workers and was prohibited by Article 39(1) of the EC Treaty (now Article 45 (1) of the

Treaty on the functioning of the European Union). Bosman and all other EU football players were given

the right to a free transfer at the end of their contracts, with the provision that they were transferring

from a club within one EU Association to a club within another EU Association.



Significance

Prior to the Bosman ruling, professional clubs in some parts of Europe (but not, for example, in Spain

and France) were able to prevent players from joining a club in another country even if their contracts

had expired. In the United Kingdom, Transfer Tribunals had been in place since 1981 to resolve disputes

over fees between clubs when transferring players at the end of their contracts. The Bosman rulingmeant that players could move to a new club at the end of their contract without their old club receiving

a fee. Players can now agree a pre-contract with another club for a free transfer if the players' contract

with their existing club has six months or less remaining.

The Bosman ruling also prohibited domestic football leagues in EU member states, and also UEFA, from

imposing quotas on foreign players to the extent that they discriminated against nationals of EU states.

At that time, many leagues placed quotas restricting the number of non-nationals allowed on member

teams. Also, UEFA had a rule that prohibited teams in its competitions, namely the Champions League,

Cup Winners' Cup and UEFA Cup, from naming more than three "foreign" players in their squads for any

game. After the ruling, quotas could still be imposed, but could only be used to restrict the number of

non-EU players on each team.

Players

Since the ruling came into effect in all of the EU in 1995, several notable players in European football

have benefited from the ruling.[5] In 1996, Edgar Davids became Europe's first high-profile player to

benefit from the ruling, when he moved from Ajax to AC Milan. In 1999, Steve McManaman became the

most lucrative transfer at the time in British football, as "Britain’s first high-profile Bosman

departure",[6] when he moved from Liverpool to Real Madrid and the deal resulted in McManaman

once becoming the highest paid British player in history, for the years 1999 through 2001.[7] Since

Davids and McManaman, scores of other notable players became able to negotiate deals according to

their market value when their contracts expired; a trend that continued into the 2000s and beyond.

Clubs

The ruling meant that clubs would no longer profit from selling players who they had helped to develop

if they left at the end of their contracts.

The Bosman ruling coincided directly with a new era of financial gains in football. In 2005, UEFA declared

that they were seeking to repair aspects of the ruling, because it was believed to be the cause of the

increasing rich-poor gap between elite and smaller clubs



Other cases

The Bosman ruling was considered and distinguished in Lehtonen (2000), a similar case which involved a

deadline imposed by FIBA after which basketball teams could not include players who had played for

another team in the same season, where it was found that such a restriction was lawful

which are the features of preliminary ruling

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