Law making by way of preliminary reference
The preliminary reference procedure is not a modern invention. It has travelled a long way through time and space – from southern to northern Europe, from Roman imperial times to the 21st century.
On 1 July 2012, the preliminary reference procedure was introduced at the Supreme Court of the Netherlands. When lower civil courts face controversial points of law, they may refer a question of interpretation to the Supreme Court and request a preliminary ruling. This way, the Supreme Court should be able to provide legal practice with a faster and more specific response to pressing legal questions than through the ‘ordinary’ procedure. This preliminary reference procedure is not a modern invention. It has travelled a long way through time and space– from southern to northern Europe, from Roman imperial times to the 21st century.
To discover the roots of the preliminary reference procedure, we have to travel to ancient Rome. The Roman emperor was legislator, executor and judge in one. When dealing with issues of private law, the emperor could first of all give judgments in specific cases as the supreme judicial instance in the empire (decreta). He could also respond to legal questions posed by individual citizens or, more importantly in the context of this blog, lower courts (consultatio ante sententiam). The imperial answer to those questions was called a rescriptum. In those instances no specific judgment was given, but a more general rule of law was formulated, which had to be used by the lower court to settle the case. More rescripta than decreta have been included in the different components of Corpus Iuris Civilis, in particular the Digest and the Codex Justinianus. It is therefore safe to say that the Roman jurists were much more interested in the contents of the rescripta, which had a more general character, and that they made up the core of the law making at the Roman imperial court during the Principate.
Similarly, the preliminary reference procedure before the European Court of Justice (ECJ) in Luxembourg has been crucial for the development of EU law. For example, in 2014 no less than 428 references have been made to the ECJ, on a total of 622 reported cases (69%). Also from a qualitative point of view, the most important judgments of the ECJ have been issued after a preliminary reference by a national court – except perhaps in the areas of European administrative law, intellectual property and competition law, which are first brought before the General Court.
The fact that such a procedure has recently been created, not only in the Hague but also in Strasbourg, does not come as a surprise. Nowadays, highest courts are expected to provide ‘leadership’ and to engage in legal and public debate more prominently and more swiftly. The preliminary reference procedure is an excellent tool in this respect, because the highest courts are less bound by the facts of the particular case and are asked to provide a general legal framework, which can and has to be applied by lower courts. This competence creates influence and power.
Three sources of tension do exist. First of all, the instrument may create tension between making law and providing legal protection. A preliminary reference will not always avail the litigating parties, as their procedure becomes more complicated, costly and lengthy. Secondly, the highest court may be asked to show ‘leadership’, even though it cannot always oversee the legal and practical consequences of its decision. Because the usual legal debate is lacking, it is therefore of utmost importance that the highest court is informed by interest groups, NGOs and scientists. Thirdly, the instrument may lead to constitutional tensions, not only between legislator and judge, but also among highest courts themselves, as the negative opinion of the ECJ on the accession of the EU to the ECHR shows.
Want to know more? In our contribution to Ars Aequi we reveal the Roman roots of the preliminary reference procedure, explain the inception and application of the instrument by the European Court of Justice in Luxembourg and discuss the potential of this new instrument for judicial law making by the Dutch Supreme Court.