Le istituzioni dell’Unione europea costituiscono gli “attori” centrali dell’Unione. Ognuna di queste istituzioni si caratterizza per la sua distinta composizione e la sua modalità decisionale. In tale contest, il contributo si propone di illustrare le istituzioni dell’Unione Europea, i loro compiti e finalità.

SOMMARIO:

1. Introduction: The Role of the European Courts in European Company Law - 2. Main Institutions of the European Union - 2.1. European Parliament - 2.2. Council of Ministers - 2.3. Commission - 2.4. Court of Justice of the European Union - 3. European Union Legislation and Competences - 3.2. Legislation - 3.3. Legal Supremacy - 3.4. Enforcement - 4. The Court of Justice of the European Union - 4.2. General Jurisdiction - 4.3. National Actions - 4.4. European Actions - 5. Preliminary Ruling Procedure - 5.2. Requests for Preliminary Ruling - 5.2.1. Procedure and Timing - 5.2.2. Scope and Content - 5.2.3. Formalities - 5.3. Relationship with National Procedure - 5.4. Effects of the Preliminary Ruling - 6. Role of the Preliminary Ruling Procedure in European Company Law

1. Introduction: The Role of the European Courts in European Company Law

As discussed in the preceding chapters, the institutions of the European Union have produced a significant body of legislation over the past several decades that aims to harmonize Company Law in the EU. The legislative efforts have been met with varying degrees of success, and on the whole have moved the harmonisation of this area of law forward as a priority of the European legal institutions, as a necessary point of focus for providing stability and predictability in the commercial operation of entities within the European Union. Working in parallel to the legislative bodies of the EU, the Court of Justice of the European Union plays an important role. As part of its mandate, the Court has played a crucial role by assisting the courts of the Member States in the interpretation and application of European law. While Chapter 2 discussed the European institutions and legislative processes in detail, this section of the text shall consider them in a more summary manner, to establish the foundation necessary to analyse one of the main functions of the CJEU in the area of European Company law. This first part of this chapter will provide a brief overview of the key institutions within this structure, before entering into detail on the specific instrument provided by European law of the so-called “request for preliminary ruling” to the Court of Justice of the European Union. Inherent in this discussion is an understanding of the powers instilled by the Treaties and European legislation not only relating to the Court of Justice of the European Union, but those powers reserved to the courts of the Member States. Further, it is important to understand how these two judicial institutions – the Court of Justice and the national courts – interact to further the harmonization of European Company law through its application to domestic questions of law arising within the Member States. Following this preliminary discussion will be a presentation of the most influential case law issued by the Court of Justice of the European Union, focusing on three key areas in European Company Law: freedom of establishment, corporate formation and accounts, and corporate governance.

2. Main Institutions of the European Union

To understand the role of the Court of Justice of the European Union in the harmonization of European law through the preliminary ruling procedure, it is useful to review the origins of the European Union. The Union is based on two treaties: the Treaty on the European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). These Treaties are referred to as “framework treaties”, as they provide the framework for subsequent secondary law. The Treaty on the European Union contains the general provisions that define the Union, while the Treaty on the Functioning of the European Union contains specific provisions with regard to the Union institutions and policies. In order to regulate within a policy area, the European Union must naturally have a legislative competence, and specific bodies that are endowed with the power to undertake these activities. Through the framework treaties, European law establishes rights and obligations that directly affect individual citizens of the Member States. However, for these individuals to enforce their European rights, it is necessary to establish a dual enforcement mechanism within the European legal order. Specifically, individuals are provided recourse to enforce their European rights in both national courts, and before European courts, each of which is endowed with specific competences. Returning to the framework treaties, the substantive heart of European law is the law governing the internal market and European competition law as, indeed, the central and foundational objective driving the creation of the European Union was the establishment of a common market. The Treaty of Rome (now incorporated into the TFEU), accordingly, did not only provide a common market for goods, but required the removal of obstacles to the free movement of persons, services and capital. As such, the “internal market” of the European Union came to be comprised of four fundamental freedoms: free movement of goods, persons, services and capital. Thus established the pillars on which European law would come to rest, the framework treaties set forth the Union institutions that would have the powers to create and enforce these fundamental freedoms. In broad terms, the Union’s main institutions are the European Parliament, European Council, Council of Ministers, European Commission, Court of Justice of the European Union, European Central Bank, and the Court of Auditors. Together these [continua ..]

2.1. European Parliament

The European Parliament is directly elected by European citizens and constitutes – along with the Council of Ministers – the Union’s legislative chamber. The European Parliament is entrusted with legislative powers, which it shares with the Council of Ministers (art. 14, TEU).

2.2. Council of Ministers

The Council of Ministers consists of a representative of each Member State at the ministerial level, who has the power to bind the government of the Member State. The Council is characterized as the “federal” chamber within the union legislature, and shares legislative powers with the European Parliament (art. 16, TEU).

2.3. Commission

The European Commission is provided for in article 17 TEU, and consists of one national of each Member State, which is chosen “on the ground of the general competence and European commitment from persons whose independence is beyond doubt”. The Commission is today firmly considered to be part of the executive branch and, in guiding the European Union the Commission – at least in part – acts like the EU’s governing body. As such, the Commission has the task to promote the general interests of the Union through its initiatives and, in doing so, acts as the driving force furthering European integration. In order to fulfil this executive governmental function, the Commission has the almost exclusive right to formally propose legislative bills for consideration by the other institutions of the European Union.

2.4. Court of Justice of the European Union

The Court of Justice of the European Union is established in article 19 TEU, and constitutes the judicial branch. Indeed, the institution itself refers to not just one court, but rather the multi-tiered organ that includes the Court of Justice, the General Court and various specialized courts. For the purposes of this discussion of the preliminary ruling procedure, which falls into the competence of the Court of Justice, the abbreviation “CJEU” will be used.

3. European Union Legislation and Competences

3.1. Areas of EU Competences The European Union is neither a sovereign state nor a federation of states. According to the constitutional principle of conferral, discussed above, the powers of the Union are not inherent, but rather must be conferred by the framework treaties (the TEU and the TFEU, together also referred to as the “Treaties”). Specifically, the TEU provides that the Union shall act only within (i) the limits of the competences conferred upon it by the Member States in the treaties, and (ii) to obtain the objectives set out therein. Competences that are not conferred specifically on to the Union remain with the Member States. From this baseline, it follows that the European Union legislator is, generally, a subsidiary legislator, as the exercise of its nonexclusive competences are restricted by the principle of subsidiarity. The principle of subsidiarity is, in fact, a constitutional principle that prevents the Union legislator from exercising its competences where the Member States would be able to achieve a desirable social aim themselves. The Treaties, however, do not simply enumerate the Union’s competences; in fact, the majority of the Union’s competences are spread across the Treaty of the Functioning of the European Union where, in each of the policy areas addressed therein, the Union is generally given a specific competence. Not all competences granted to the Union provide it with the same power; instead, the legal order of the European Union recognizes various categories of competence that are distinguished between exclusive, shared, coordinating and complementary. In each of these categories of competence, power is constitutionally divided between the Union and the Member States. Within its areas of exclusive competence, the Union is competent to legislate unilaterally, whereas in areas of nonexclusive competence, it shares legislative powers with the Member States.

3.2. Legislation

The Treaty on the European Union and the Treaty on the Functioning of the European Union distinguished two types of legislative procedures: an ordinary legislative procedure and special legislative procedures. Ordinary legislation is adopted following a multi-step formal procedure. As stated above, in the ordinary legislative procedure, the Commission has – with the exception of specific, minor cases, which fall outside the scope of this text – the exclusive right to submit legislative proposals, which may then be taken up by other European institutions. Then, the European Parliament and the Council of Ministers co-legislate with symmetrical procedural rights. As a result, European legislation is seen as the product of a joint effort by both institutions. On the other hand, the Treaties also create special legislative procedures, in which acts are adopted by either the European Parliament or the Council of Ministers. The TFEU recognizes two variants of this procedure: the first in which the European Parliament acts as the dominant institution, in which the Council merely participates in the form of giving its consent; and secondly, in which the Council is the dominant institution, and the Parliament participates either by giving consent or by consultation. Moving on, as framework treaties, the TEU and TFEU provide the groundwork for the adoption of European secondary law. Specifically, the TFEU provides that in the exercise of the Union’s competences, the European institutions shall adopt regulations, directives, decisions, recommendations and opinions. Regulations have general application, are binding in their entirety and directly applicable in all the Member States. Directives, on the other hand, are binding as to the result to be achieved, but leave the national authorities of the Member States to choose the form and the means of implementation. A decision is binding in its entirety, though when the decision specifies those to whom it is addressed, it is binding only on those persons or entities. Recommendations and opinions have no binding force, but are useful in guiding the approach to the other forms of legislation or the functions of European institutions.

3.3. Legal Supremacy

The issue of legal supremacy is connected to the direct effect of European legislation within a Member State. As set forth by the CJEU, a European legal provision is considered to have direct effect, and thus can be enforced by an individual or entity in court, when it fulfils three conditions: (i) it is sufficiently clear and precise, (ii) it is unconditional, and (iii) it confers a specific right on which an individual or entity can base a claim. Direct effect can apply both vertically (the individual or entity can enforce EU law against a Member State) and horizontally (EU law is enforced between individuals or entities). Virtually all sources of European law have been considered capable of producing law with direct effect, meaning they can be invoked before a Member State court. The general exception to this rule is the directive, which is not directly effective, but instead must first be enacted by a Member State to have effect. The directive thus represents a form of background or indirect European law. Since European law may have direct effect within a Member State, it is possible that it may come into conflict with national law. The issue of legal supremacy deals with whether, in these cases, the national law or European law will prevail. According to another early decision by the CJEU, provisions of EU law that have direct effect prevail over conflicting national laws. In other words, when European rights or obligations are invoked in a Member State court, the doctrine of direct effect demands that the national court applies European law to the dispute to resolve the questions before it. Meanwhile, the principle of supremacy requires that, in the event a conflict between national and European Law arises, the national courts do not apply national law, and instead only apply the relevant European law. Indeed, for the survival of the European legal order, the absolute supremacy of European law means that all Union law prevails over all conflicting national law. Member States sometimes push back against the supremacy of European Law. National challenges to the absolute supremacy of European law are traditionally expressed in two contexts. First, some Member States, generally through their Supreme Courts, have opposed the Union legal order in the area of human rights, claiming that European law cannot violate fundamental rights that are recognized in the national legal framework. The second context comes about in the area of ultra virus control, [continua ..]

3.4. Enforcement

Viewing these institutions and instruments through the lens of the judicial context, to enable an individual citizen of a Member State to enforce European Law before a national court, the European legislation must fulfil certain requirements, namely that it has direct effect. As stated above, most EU legislation has direct effect, with the exception of the directive. A directive is binding as the result to be achieved, leaving the form and means to be implemented by the national authorities; in other words, directives are binding on states, but not within states. As a result, they are not directly applicable and need to be incorporated or implemented through national legislation. That said, the CJEU has identified certain circumstances in which directives may have a direct effect that may be enforced by individuals before a national court. First, the CJEU held that a directive, or a part thereof, can have direct effect when it is (i) unconditional, and (ii) sufficiently precise, effectively adopting the criteria set forth for direct effect of other European legislation. Further, the direct effect of a directive may only arise after a Member State has failed to implement the directive properly, meaning by the deadline established in the directive for transposition into national law and in line with any parameters specified therein, and then only in relation to Member State authorities (vertically). The result of this last point is that directives do not have horizontal direct effect. The “no-horizontal-direct-effect” rule essentially holds that an individual cannot enforce a directive against another individual. This means that, generally speaking and with some narrow exceptions identified by the CJEU case law, the only direct effect a directive may have arises vis-à-vis the Member State, when a Member State fails to implement the directive properly or at all, and then only after the deadline for implementation has passed. Returning to the discussion of European legislation as a whole, European law establishes rights and obligations that directly affect individuals, and thus also entities, in the Member States. As stated in above, where a European norm is directly effective, it is considered to be “supreme” over national law, thus giving rise to the question of how an individual citizen of a Member State can enforce their “supreme” European rights. To answer this question, the EU legal order provides a dual [continua ..]

4. The Court of Justice of the European Union

4.1. Composition Article 1 of the Statute the Court of Justice of the European Union (the “Statute”) states that the CJEU “shall be constituted and shall function in accordance with the provisions of the treaties, of the Treaty establishing the European atomic energy community and of the Statute”. The role of the institution of the Court of Justice is to ensure that EU law is interpreted and applied in the same way in every Member State, and that the EU Member States and institutions abide by EU law. The Court of Justice, specifically, is composed of one judge representing each Member State, and 11 advocates general, each of which are appointed for a term of six years. Among the judges, a President of the Court and a Vice President are elected for renewable terms of three years. The President is responsible for representing the Court and managing its work program, and is assisted by the Vice President in these tasks, where necessary. The advocates general support the work of the Court by providing independent and neutral opinions assessing the case at hand. According to the presentation provided on the website of the CJEU, “The Judges and Advocates General… are chosen from among individuals whose independence is beyond doubt and who possess the qualifications required for appointment, in their respective countries, to the highest judicial offices, or who are of recognised competence”. The Registrar of the CJEU is also appointed for a six-year term, and is responsible for the acceptance, transmission and custody of all documents, and for the keeping of records. Further, the Registrar assists the members of the Court, is in charge of the Court’s publications, and directs the services of the Court under the authority of the President of the Court. The Court is designed to serve all of the languages of the Member States. For each case before the Court of Justice, an official language of the proceedings is selected. While in direct actions, the applicant may choose the language from one of the official EU languages, in preliminary ruling procedures, the language of the case is that of the national court or tribunal.

4.2. General Jurisdiction

The CJEU has clearly defined areas of jurisdiction. In addition to hearing appeals on matters from the European General Court, it has direct competence in certain specified areas. Specifically, the CJEU has jurisdiction to hear: references for preliminary ruling; actions for failure of a Member State to fulfil obligations under European law; actions for the annulment of a measure (specifically, a regulation, directive or decision) adopted by an EU institution, body, office or agency; and actions for failure to act by a an EU institution, body, office or agency. Each of these types of actions may be brought in specific circumstances and according to procedural guidelines that are detailed in the CJEU Rules of Procedure. With regards to references for the procedure for a preliminary ruling, the CJEU has capacity to preside over referrals for questions on the interpretation of European law or the validity or interpretation of an act of an EU institution, body, office or agency, upon referral from a Member State court or tribunal, for which the preliminary ruling is necessary for the resolution of the case before it. This procedure will be discussed in more detail below.

4.3. National Actions

As discussed at subsection 3 of this chapter, national courts are the principal judicial enforcers of European law. Indeed, whenever European law is directly effective, national courts must apply it; and wherever a Union norm comes into conflict with national law, the supremacy doctrine mandates that the national court holds that European law prevails over the national law. As confirmed by the CJEU, the Union legal order requires that there be nothing within the national judicial system that prevents national ordinary courts from exercising their function as the “guardians” of the European judicial order. Indeed, the relationship between European law and the national courts – and specifically, the direct effect and supremacy of European law – effectively transforms every national court of a Member State into a European court, though the institutions themselves remain distinct. To further cement this function, there is no appeals procedure from the national to the European courts, thus emphasizing that the relationship between the national courts and European courts is based on mutual, voluntary cooperation. The core duty governing the decentralized enforcement of European law by national courts is rooted in article 4(3) TEU: the duty of sincere cooperation. The autonomy of national enforcement procedures has never been absolute, and the Union has imposed a number of obligations on the national courts. Indeed, the duty of sincere cooperation has been complemented by a provision providing that “Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by union law” (art. 19(1), TEU). To assist in this role, the Court of Justice has identified two principles that both endow the national courts with the competence over EU judicial procedures and provide obligations for how the national courts preside over such cases. These principles are now referred to as: the principle of equivalence, which requires national courts to extend existing national remedies to similar European actions, and the principle of effectiveness, which demands that national remedies must not make the enforcement of European law excessively difficult. A further principle that has been identified in this area is the liability principle. While the principles of equivalence and effectiveness rely on the existence of national remedies for the enforcement of European law, this principle establishes a [continua ..]

4.4. European Actions

As stated above, the European Treaties establish a dual enforcement mechanism for European Union law. In addition to from the decentralized enforcement of European law by national courts, the Union legal order envisages direct enforcement of European law through the European courts. There are four types of judicial actions that can be brought directly before the Court of Justice of the European Union. The Treaties distinguish between infringement actions against the Member States, proceedings against the Union for failure to act, proceedings against the Union or in which the Union is liable for non-contractual damages, and actions in which the European Court is requested to review the legality of European (secondary) law. The Union legal order has thereby opted for a strong rule of law approach, allowing the CJEU to review the formal and substantive legality of European law.

5. Preliminary Ruling Procedure

5.1. Introduction The need for a preliminary ruling procedure arises in a rather simple scenario: the national court or tribunal of a Member State has a case before it that involves the direct effect of European law and requires the interpretation of European legislation, or the determination of whether an act by European institutional body is valid in light of European law. If the resolution of this issue is not clear on the basis of the law itself or European case law, the national court or tribunal has the ability to submit questions to the CJEU, requesting it to provide the proper interpretation or determination of validity. Following the CJEU’s response to the questions, the national court or tribunal can then decide the case before it, applying the correct interpretation of European law. Entering into more detail, the legal basis for a reference for preliminary ruling is found in both the Treaty on the European Union and the Treaty on the Functioning of the European Union. Article 19(3)(b) TEU creates the ability for the Court of Justice to provide preliminary rulings, providing that “3. The Court of Justice of the European Union shall, in accordance with the treaties: (…) (b) give preliminary rulings, at the request of courts or tribunals of the member states, on the interpretation of union law or the validity of acts adopted by the institutions”. Article 267 TFEU then defines the scope of the jurisdiction conferred on the court of justice, providing that: “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 member state, that court or try being beautiful 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 bring the matter before the court. If such a question is raised in a case pending before a court or tribunal of the member state with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay.” Together, these [continua ..]

5.2. Requests for Preliminary Ruling

Every procedure for a preliminary ruling initiates with the court or tribunal of the Member State. Indeed, the court or tribunal of the Member State has the capacity to determine when and whether a request for preliminary ruling should be submitted. In other words, the needs, request and preferences of the parties do not play a formal role in whether a question is submitted to the CJEU. Indeed, following the preliminary ruling reference, the national court will have the sole responsibility for deciding the case before it, thus it is appropriate for the national court to assume responsibility for determining if it is necessary to seek assistance from the CJEU. There are situations in which the national court may refer a question to the CJEU, and those in which it is required to do so. A national court may refer a question to the CJEU when the issue of European law is such that guidance from the CJEU is necessary to allow the national court to issue a decision (art. 267, TFEU, para. 1). This may be particularly true when the question of European law is new, of general interest for the uniform application of EU law, or where the jurisprudence of the Court of Justice does not provide the necessary guidance in the particular legal context or set of facts before the national court (Recommendations, para. 5). On the other hand, a national court or tribunal must submit a request for preliminary ruling when the question on the interpretation of EU law is raised in a case pending before a court from which there is no further judicial remedy under national law (art. 267, TFEU, para. 3), unless there is well-established case law of the CJEU that answers the question, or unless the law in question raises no reasonable doubt as to the correct interpretation (Recommendations, para. 6). With regards to questions of the validity of acts of an institution, body, office or agency of the Union, it bears recalling that the Court of Justice has exclusive jurisdiction to declare such acts invalid (Recommendations, para. 7). Accordingly, while national courts and tribunals may reject claims raised by litigants challenging such acts, when it has doubts on the validity of the act, the court or tribunal must refer the matter to the CJEU for a preliminary ruling.

5.2.1. Procedure and Timing

The court or tribunal of the Member State seized with the national action is in the best position to decide when it is appropriate to submit a question for interpretation to the CJEU and, as discussed above, this discretion of the national court or tribunal cannot be limited. At the moment in which an interpretation of European law becomes necessary to enable the court or tribunal to issue a decision in the action before it, that court or tribunal may submit a request for preliminary ruling to the CJEU (Recommendations, para. 12). In practical terms, the national court or tribunal requires a certain amount of information in order to determine whether an interpretation of European law is necessary for it to be able to take a decision. Accordingly, a referral to the CJEU will generally arise at a stage in the proceedings in which the court or tribunal has had an opportunity to consider the facts and issues of law before it, in order to gain an overall understanding of the legal issues at stake (Recommendations, para. 13). The procedure underlying a request for preliminary ruling is largely set forth in Title III (articles 93-118) of the Rules of Procedure of the CJEU. The scope of the procedure encompasses actions before the CJEU that are defined by article 23 of the Statute of the Court of Justice of the European Union (the “CJEU Statute”), as well as references for interpretation that may be provided by agreements to which the EU or the Member States are parties (art. 93, CJEU Rules of Procedure). For the purposes of this text, this chapter will focus on the former. Article 23 of the CJEU Statute states in relevant part: “in the case is governed by Article 267 of the Treaty on the Functioning of the European Union, the decision of the court or tribunal of a Member State that suspends its proceedings and refers a case the Court of Justice shall be notified to the Court by the court or tribunal concerned.” In other words, the request for preliminary ruling originates from the court or tribunal of the Member State, which acting on its own initiative, suspends the case involving a question on interpretation of European law pending before it, and notifies the CJEU of the referral (art. 23, Statute, para. 1). Following the court or tribunal’s submission of the referral to the CJEU, the referral is notified by the CJEU to the parties, to the Member States and to the Commission, and – if applicable – to the entity or [continua ..]

5.2.2. Scope and Content

As indicated in the previous section, the preliminary ruling procedure applies to cases covered in article 23 of the CJEU Statute and references for interpretation on agreements to which the European Union or Member States are parties (art. 93, CJEU Rules of Procedure). As clarified in the Recommendations, a request for preliminary ruling must concern the interpretation or validity of European law, and not the interpretation of rules of national law or issues of fact raised in the national proceedings (para. 8). Indeed, the CJEU can only give a preliminary ruling if EU law applies to the case in the main proceedings (para. 9). While it falls outside the scope of the text, it is worth noting that there are specific rules relating to requests for preliminary rulings that concern the interpretation of the charter of fundamental rights of the European Union. The Rules of Procedure of the CJEU, in article 94, stipulate the appropriate content of a request for preliminary ruling. Specifically, in addition to the text of the questions themselves to which the referring court or tribunal seeks a response, the request for a preliminary ruling must contain: a summary of the subject matter of the dispute and the relevant findings of fact as determined by the referring court or tribunal; the tenor of any national legal provisions, both statutory and case law, that apply to the case; an explanation of why the referring court or tribunal deemed it appropriate to submit a request for interpretation of European law, and the relationship between the European provisions and national legislation that applies to the main domestic proceedings. In the absence of one or more of these prerequisites, the CJEU may find itself in a position in which it must decline jurisdiction or dismiss the request as inadmissible (Recommendations, para. 15). Indeed, the case law of the CJEU has recognized three grounds of inadmissibility for requests for preliminary ruling. In particular, a request for preliminary ruling is inadmissible when: (i) the answer to the question sought is irrelevant to the case before the Member State, (ii) the dispute between the parties before the Member State court is merely hypothetical, or (iii) the case file as transmitted to the CJEU lacks sufficient factual or legal information for the CJEU to answer the questions posed. In addition to the obligation for the national court or tribunal to provide precise references to the national legal provisions and [continua ..]

5.2.3. Formalities

Setting aside the substantive requirements set forth above, the request for preliminary ruling may be formulated in the manner deemed appropriate by the referring court or tribunal, which means in practical terms, that it may be in any form allowed national legal procedure. That said, the request forms the basis for proceedings before the Court of Justice of the European Union, and is either in its entirety or in summary form served on the interested stakeholders defined in article 23 of the CJEU Statute (as discussed above). Due to the necessity to translate and distribute the request to the stakeholders, the Recommendations state that “the request for preliminary ruling should therefore be drafted simply, clearly and precisely by the referring court or tribunal, avoiding superfluous detail” (para. 14). To facilitate an understanding of the scope and content of the request, the Recommendations indicate that it is necessary that the questions referred are placed into a separate and clearly identified section of the court or tribunal’s request, preferably at the beginning or the end of the document (para. 18). Indeed, the questions must be formulated as plainly as possible, such that it is possible to understand them standing alone without the need to make reference to the statement of grounds that support the request. The Recommendations further indicate that the request be no longer than 10 pages (para. 14), that it be in typewritten form with the pages and paragraphs numbered (para. 19). The request must be dated and signed and sent by registered post to the official address for the CJEU, accompanied by all relevant documents, contact details for the parties the main proceedings and their representatives, and the file of the case in the main proceedings, if any (para. 20). Proceedings before the CJEU for preliminary ruling are generally not anonymous. The CJEU will consider itself free to use the information contained in the reference, including nominative or personal data. It is therefore the responsibility of the referring court or tribunal to redact any sensitive information in the request for preliminary ruling, or to render any parties involved anonymous (art. 95, CJEU Rules of Procedure; Recommendations, para. 21). The Court of Justice may later render parties anonymous during the preliminary ruling procedure, but in practical terms, this is most effective if done at the start of proceedings (art. 95(2), CJEU Rules of [continua ..]

5.3. Relationship with National Procedure

While the practice of the preliminary reference procedure calls for the suspension of the national court proceedings, the Recommendations clarify that the referring court or tribunal may still order protective measures within the national court action (para. 23). Here it bears recalling the origin of the preliminary ruling procedure, set forth in article 267 of the Treaty on the functioning of the European Union, which bestows jurisdiction on the CJEU give preliminary rulings on the interpretation of treaties and the validity and interpretation of the acts of the European institutions, bodies, offices or agencies. Article 23 of the CJEU Statute then provides that in these cases, a Member State may suspend its proceedings and refer a question that falls into these categories to the CJEU. As a result of this background, the jurisdiction of the CJEU to issue preliminary ruling is directly tied to the pendency of a national case before a court or tribunal. Since the jurisdiction conferred on the CJEU to respond to preliminary ruling requests entirely depends on their being, before a national court or tribunal, a pending dispute under national law, the discontinuance or withdrawal, including through amicable settlement, of the original dispute will cause the termination of the preliminary ruling procedure before the CJEU (Recommendations, para. 24). As mentioned above, throughout the preliminary ruling procedure, the Registrar of the CJEU and the national court or tribunal will remain in contact in order to facilitate the outcome of the procedure. It is incumbent on the court or tribunal to promptly communicate to the Registrar any changes in the procedural circumstances of the national case to the CJEU (Recommendations, para. 25). Before doing so, the national courts or tribunals should consider the effect that such withdrawal will have on similar cases, also considering that if there is a series of cases relating to a similar subject matter or determination, it may be appropriate for the CJEU to join this cases for preliminary ruling. In that circumstance, the withdrawal of one or more cases will not necessarily cause the termination of the proceedings before the CJEU.

5.4. Effects of the Preliminary Ruling

Assuming, however, that the request for preliminary ruling is not inadmissible, and is not withdrawn or abandoned, following the CJEU’s decision on a request for preliminary ruling, that decision is communicated to the national court. It is then for the national courts or tribunals to assess whether the preliminary ruling provides sufficient guidance to resolve the question before it, or to apply to the CJEU for further clarification. (art. 104, CJEU Rules of Procedure). It is important to emphasize that, in providing the preliminary ruling, CJEU limits itself to providing a specific interpretation requested by the referring court or tribunal. The CJEU does not apply that interpretation to the facts and circumstances of the national court action. Instead, it is the role of the national court to take the interpretation provided by the CJEU and apply it faithfully to the case before it and to issue a decision. In the event the national court or tribunal determines that the CJEU has fully answered the questions that were submitted and continues to issuing a decision in the pending case, the national court or tribunal is then invited to inform the CJEU of the outcome of the case in the main proceedings, by communicating its final decision in the main action (Recommendations, para. 29). While the immediate effects of the preliminary ruling are seen in the national court action that will be decided by the referring court or tribunal, it bears recalling that, by issuing a preliminary ruling, the Court of Justice of the European Union has issued a interpretation of European law or declaration of validity of an act of a European institutional body, and as such, that preliminary ruling is formally binding on all courts of the European Member States. The preliminary ruling is thus added to the body of European jurisprudence, and is to be considered and referenced in future disputes that fall into the same subject area. That said, where appropriate, the CJEU may also provide an interpretation of EU law that is so specific to the facts and circumstances of the pending dispute as to not be capable of being applied to other situations.

6. Role of the Preliminary Ruling Procedure in European Company Law