Professor Panos Koutrakos – LexisPSL – Preliminary references and the right of courts of last resort not to refer (Consorzio Italian Management e Catania Multiservizi)

03 Nov 2021

EU Law analysis: This judgment by the Court of Justice, Grand Chamber, is about the preliminary reference procedure (Article 267 TFEU) and the power of courts of last instance in EU Member States not to refer, provided that certain conditions are met. It reaffirms existing case-law and provides further guidance about how domestic courts must decide whether the interpretation of EU law is so obvious as to render a reference unnecessary—on the one hand, they are not required to examine all language versions of EU law and may decide not to refer even in cases where different interpretations are possible but not sufficiently plausible; on the other hand, they must be particularly vigilant, given the objective of uniform interpretation of EU law, and must provide reasoning for their decision not to refer. The judgment confirms the significance of courts of EU Member States in the process of interpretation of EU law while it makes it clear that their power is neither unlimited nor unchecked. It is also helpful for practitioners, as it highlights the relevance of the information they may provide domestic courts in order to argue that a reference to the Court of Justice be made. Written by Professor Panos Koutrakos, barrister at Monckton Chambers and Professor of EU Law, and Jean Monnet Professor of EU Law at City, University of London.

This analysis was first published on Lexis®PSL on 14 October 2021 and can be found here.