National Administrative Courts, the Court of Justice of the European Union: preliminary references (Lithuanian case)

Abstract

Article 267 of the Treaty on the Functioning of the European Union (hereinafter – TFEU) encompasses the procedure of preliminary ruling. This article provides that the Court of Justice of the European Union (hereinafter – ECJ) shall have jurisdiction to give preliminary rulings concerning the interpretation of the Treaties and the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union. According to R. Widdershoven, „the preliminary ruling procedure offers an important for co-operation between the national courts and the ECJ. It is the exclusive right of the national courts to refer a preliminary question“ 1 . Here, in this article, the author does not explain the meaning, importance and procedure of the preliminary ruling institute as it was done a lot of times in different articles and other scientific materials. By this contribution the author tries to describe when and in which cases administrative courts of the Republic of Lithuania (hereinafter – national administrative courts) refer preliminary references to the ECJ. The very first prejudicial question was referred in 1961 2 . In its’ first preliminary ruling the ECJ stated that the “national court is entitled or obliged, as the case may be, to request a preliminary ruling” 3 . From that time until the end of 2015 national courts referred about 9 495 prejudicial questions to the ECJ. Recently, the average figure of preliminary references has been approximately about 400 a year. The figures are growing as from 1961 to 1969 only 75 preliminary references 4 were r equested. Some statistics from Lithuania: from 2005 to 2015 national courts of the Republic of Lithuania (including both – courts of general and specialized jurisprudence) requested for the preliminary ruling around 37 times, among them national ad- ministrative courts – circa 15 times. The Constitutional Court of the Republic of Lithuania only once asked for the preliminary ruling in 2007. The reference was related to the interpretation of Article 20 of Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity 5 . In this reference the Constitutional Court stated that, “according to the Constitution, provisions of European Union law are to be a constituent part of the legal system of the Republic of Lithuania and that, where this follows from the Treaties founding the European Union, those provisions are to be applied directly and, in the case of conflict, take precedence over national provisions. As the Directive was adopted on the basis of Articles 45 EC, 55 EC and 95 EC, the national court is of the view that it is necessary to interpret Article 15(2) of the Law on Electricity, in the version resulting from Law No IX-2307 of 1 July 2004, in the light of the Dir ective”.