Obligation to request a preliminary ruling

Article 267(2) of the TFEU provides that a National Court or Tribunal may refer a question in reference for a preliminary ruling to the Court of Justice if it considers that a decision on the question is necessary to enable it to give judgment.

However, the obligation of National Courts to refer for a preliminary ruling is subject to certain exceptions. 

By this case law, a National Court is not obligated when the EU law questions are not relevant to the decision in the main proceedings, or when there is a materially identical question that has already been subjecting of a preliminary ruling in a similar case or when the proper interpretation of EU law is “so obvious as to leave no scope for any reasonable doubt”.

Article 177 of the EEC Treaty, which established that “Where any such question is raised before a court or tribunal of one of the Member States, such court or tribunal may, if it considers that its judgment depends on a preliminary decision on this question, request the Court of Justice to give a ruling thereon”, does not obligate National Courts to accept all questions according, they must send a reference for a preliminary ruling if it is a relevant question connected to European law that was not previously answered to decide in the main case.

This historical case law helped to guide National Courts and Tribunals as to when a matter of EU law may be decided without reference to the Court of Justice of the European Union.

Case law summary

The Corte Suprema di Cassazione referred to the Court of Justice for a preliminary ruling on the interpretation of the third paragraph of Article 177 of the EEC Treaty.


That question was raised in connection with the main case concerning a dispute between wool importers and the Italian Ministry of Health regarding the payment of a fixed health inspection levy regarding wool imported from outside the community.


The firms concerned relied on Regulation (EEC) No 827/68 of 28 June 1968 on the Common Organization of the Market in certain products listed in Annex II to the Treaty as the Article 2 (2) of that Regulation prohibits the Member States from levying any charge having an effect equivalent to customs duty on imported “animal products”.


From the other part, the Ministry for Health contended that wool is not included in Annex II of the Treaty and is therefore not subject to a typical organization of agricultural markets.


The Ministry of Health held that the answer to the question concerning the interpretation of the measure adopted by the community institutions is so apparent as to refer to the Court of Justice as a preliminary ruling. However, the companies concerned maintain that the Corte Suprema di Cassazione cannot, according to the terms of the third paragraph of Article 177, escape the obligation to bring the matter before the court of justice.


The Corte Suprema di Cassazione asked the ECJ if that lay down an obligation so to submit the case which precludes the national court from determining whether the question raised is justified or does it, and if so within what limits, make that obligation conditional on the prior finding of reasonable interpretative doubt.


The ECJ ruled that the third paragraph of Article 177 of the EEC Treaty must be interpreted as meaning that a Court or Tribunal against whose decisions there is no judicial remedy under national law is required, where a question of community law is raised before it, to comply with its obligation to bring the matter before the Court of Justice, unless it has established that the question raised is irrelevant or that the community provision in question has already been interpreted by the court of justice or that the correct application of community law is so evident as to leave no scope for any reasonable doubt. The existence of such a possibility must be assessed in the light of the specific characteristics of community law, the particular difficulties to which its interpretation gives rise and the risk of divergences in judicial decisions within the community.


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