Article 267 TFEU and the Overwhelming of the CJEU

Article 267 of the Treaty on the Functioning of the European Union (TFEU), and the preliminary rulings procedure it establishes, play a critical role in the coherent development of EU law and in shaping the dialogue between national courts and the Court of Justice of the European Union (CJEU).

It has been described as “by far the most important aspect of the judicial system of the Community.” The mechanism has enabled the CJEU to deliver foundational constitutional judgments defining the relationship between the EU and its member states.

At the same time, critics argue that Article 267 has been stretched too far, particularly in relation to the types of bodies permitted to refer questions, leading to an excessive caseload and, at times, lower‑quality rulings.

The core purpose of the preliminary ruling procedure is to prevent divergences in judicial interpretation of EU law, ensuring uniformity across all twenty‑seven member states. As more than half of the CJEU’s workload, it has exposed the Court to issues it might not otherwise encounter.

Through this procedure, the Court has developed fundamental principles of EU law, including direct effect, supremacy, indirect effect and member state liability.

One of the Court’s most significant judgments, Van Gend en Loos (Case 26/62), arose from a preliminary reference. It established the doctrine of direct effect: where certain criteria are met, EU provisions may confer rights enforceable by individuals before national courts.

The Court reasoned that if individuals could not invoke the Treaty domestically, Article 267 would serve no purpose. Supremacy, although closely linked, was not confirmed until Costa v ENEL (Case 6/64), also via a preliminary ruling. Faced with a challenge to its jurisdiction, the Court articulated the supremacy principle: due to its special and original nature, EU law cannot be overridden by domestic law.

The Court relied on ‘effet utile’, arguing that member states accepting obligations at EU level must allow those obligations to operate in practice. The justifications for direct effect and supremacy therefore align closely with the purpose of Article 267, demonstrating the mutual dependence between the procedure and these constitutional doctrines.

However, the Court’s broad interpretation of Article 267 has contributed to an overwhelming caseload, with some preliminary rulings taking more than twenty‑four months.

One contributing factor is the Court’s expansive view of what constitutes a “court or tribunal.”

Although arbitration bodies and administrative authorities not determining legal disputes are excluded, the Court has adopted a purposive approach to the criteria: statutory origin, permanence, inter‑partes procedure, compulsory jurisdiction and application of the rule of law. These criteria were reaffirmed in De Coster (Case C‑17/00).

Under Article 267(2), any national court or tribunal may refer a question of EU law if it considers a ruling necessary. Following ex parte Else [1993] QB 534, there is effectively a presumption in favour of referral.

Under Article 267(3), courts of last instance must refer questions of EU law where no further domestic remedy exists. The CJEU favours the “concrete theory,” meaning the obligation applies to the highest court in the case, as illustrated in Costa v ENEL, where the defendant could not appeal further due to the small value of the claim.

Despite the mandatory wording of Article 267(3), the Court introduced the doctrine of ‘acte clair’ in CILFIT (Case 283/81), holding that courts of final instance need not refer where the meaning of EU law is so clear as to leave no room for reasonable doubt. This blurs the line between the interpretative role of the CJEU and the adjudicative role of national courts.

In Cristini (Case 32/75), the Court held that a discounted rail ticket constituted a social advantage, despite stating it could not decide the case itself. The national court was left with little more than acknowledging and enforcing the CJEU’s conclusion. As the Advocate General in Costa observed, there is a fine line between interpretation and application, and the CJEU must remain on the interpretative side.

In conclusion, the preliminary ruling procedure is indispensable to the uniformity of EU law, enabling the CJEU to clarify and develop key principles underpinning the Union’s legal order.

However, the Court’s broad interpretation of what constitutes a court or tribunal, combined with increasing numbers of discretionary and mandatory references, has expanded the scope of the procedure significantly.

The continuous growth in referrals risks overwhelming the Court.

As JHH Weiler warns, this may lead to lower‑quality rulings and dilute the normative force of the Court’s jurisprudence as it becomes increasingly occupied with detailed, routine matters rather than shaping the broader development of EU law.