‘The referring court asks, in essence’: Is reformulation of preliminary questions by the Court of Justice a decision writing fixture or a decision‐making approach?

• Author: Anna Wallerman,Urška Šadl
• Published date: 01 July 2019
• DOI: http://doi.org/10.1111/eulj.12335
• Date: 01 July 2019

ORIGINAL ARTICLE

‘The referring court asks, in essence’:Is

reformulation of preliminary questions by the

Court of Justice a decision writing fixture or a

decision‐making approach?

Urška Šadl*|Anna Wallerman

†

Abstract

The Court of Justice can rephrase or otherwise depart from the questions referred to it by

national courts under Article 267 of the Treaty of the Functioning of the European Union. It

does so routinely: a practice known as reformulation. Legal literature often argues that reformu-

lation is used to clarify national court questions and bring them within the scope of European

Union law. The aim of the present article is to explore this claim systematically. To this end,

it compiles a unique dataset consisting of the Orders for Reference, in which the referring

courts embed the preliminary questions, and the judgments, in which the Court of Justice com-

municates the answers. The findings suggest that reformulation is a decision‐making approach

rather than a fixture of decision writing. It's main function is to neutralize conflicts and

Europeanise disputes. It underlines the Court's power to shape the preliminary ruling procedure

and its outcomes.

1|REFORMULATION AS AN EMBLEMATIC FEATURE OF THE

PRELIMINARY RULING PROCEDURE

Article 267 of theTreaty of the Functioning of the European Union (TFEU) provides that national courts can address

a preliminary question to the Court of Justice (the Court) in cases where doubt exists about the interpretation or

validity of European Union law. The Court is obliged to deliver an answer. However, the Court can rephrase or oth-

erwise depart from the questions of the referring courts. Such reformulation is an emblematic feature of the prelim-

inary ruling procedure. The Court paraphrases the question using different terms. Often, it joins several questions in

*EUI Department of Law, Via Bolognese 156|50139, Villa Salviati, Manica ‐Office SAMN 221, Florence, Italy

†

University of Gothenburg, Department of Law, Box 650, 40530 Gothenburg, Sweden. Anna Wallerman's work on this article was funded by grants from

the European University Institute (Italy) and the Ragnar Soderberg Foundation (Sweden).

We thank Lucía López Zurita and Natalie Schwarz for excellent research assistance. We are grateful to Giorgio Monti, Damian Chalmers, Joanne Scott,

Claire Kilpatrick, the participants of the EUI Faculty Seminar and two anonymous reviewers for critical comments and helpful suggestions.

Received: 17 August 2018 Revised: 5 April 2019 Accepted: 17 June 2019

DOI: 10.1111/eulj.12335

416 © 2019 John Wiley & Sons Ltd. Eur Law J. 2019;25:416–433.wileyonlinelibrary.com/journal/eulj

one reformulated question and provides a single answer or interpretation

1

; or it reverses the order of questions

2

;orit

decides that some questions have become obsolete in the light of previous answers.

3

Some modifications can change

the preliminary questions substantively,

4

leading to a binding interpretation of a provision of European Union law,

which the referring court did not raise.

5

Invariably, this raises the question of whether reformulation is more than a stylistic feature of the judgment.

Could it be a strategy? Doe s the Court —as is often asse rted in legal litera ture —reformulate th e questions of

the referring court to clarify abstruse questions and bring them within the limits of its jurisdiction and the scope

of European Union law?

6

Or does the Court use reformulation to expand these limits? The latter hypoth esis

would fit better in th e narrative of an integ rationist Court

7

that uses all tools at its disposal to further policy

goals.

In addressing the question of whether reformulation is a matter of drafting style or a decision‐making approach,

this article investigates the circumstances under which the Court reformulates the preliminary questionsand to what

degree. The analysis proceeds via a two‐step process and it relies on a unique dataset that includes 106 Orders for

Reference from the national courts to the Court of Justice (OfR), and 94 judgments of the Court. The first analytical

step groups different characteristics of the OfR and the judgments of the Court into three categories. These catego-

ries relate to the complexity of the case before the national court and the resulting OfR, the national court's outlook

on European Union Law, and the Court's tendency to expand its legal reach. The second analytical step examines

which factors increase the scope of reformulation. To determine the scope of reformulation, the article introduces

a conceptual framework that distinguishes between stylistic (less significant in scope) and substantive (more signifi-

cant in scope) reformulation.

The findings indicate that the complexity of the national court's case and its OfR is not dec isive. By contrast,

the national court's outlook on European Union law seems pivotal. Moreover, the frequency and the scope of

reformulation do no t coincide with the expan sion of the European Un ion's competence. Ho wever, the scope of

deference to the referring court differs in stylistically and substantively reformulated questions. The Court more

often gives more complete and detailed answers when it reformulates the preliminary questions substantively.

It provides less detailed guidelines when it reformulates the questions stylistically. Finally, the proportion of

avoidance (avoiding straightforward answers) doubles in cases in which the Court reformulates the questions

substantively.

Hence, the findings indicate that reformulation is more than a matter of decision writing. The Court may rely on

reformulation to assist the referring courts, but only to the extent where it can comfortably interpret European Union

1

Case C‐512/13, C.G. Sopora v Staatssecretaris van Financiën, ECLI:EU:C:2015:108, para. 20: ‘Thus, by its questions, which it is appropriate to examine

together, the referring court asks essentially’(here, the Court joins three questions into one).

2

Case C‐219/15, Schmitt, ECLI:EU:C:2017:128, para. 38: ‘By its second and third questions, which it is appropriate to answer first and together’.

3

Case C‐67/14, Jobcenter Berlin Neukölln v Nazifa Alimanovic and Others, ECLI:EU:C:2015:597, para. 47.

4

See Case C‐346/05, Monique Chateignier v Office national de l'emploi (ONEM), ECLI:EU:C:2006:711, esp. paras. 19 and 24.

5

Cf. Allan Rosas, ‘The European Court of Justice in Context: Forms and Patterns of Judicial Dialogue’(2007) 1 European Journal of Legal Studies; Daniel

Sarmiento, ‘Half a Case at aT ime: Dealing with Judicial Minimalism at the European Court of Justice’in Monica Claes and others (eds), Constitutional Con-

versations in Europe : Actors, Topics and Procedures (Intersentia 2012). Note the exception in Morten P Broberg and Niels Fenger, Preliminary References to the

European Court of Justice (Second edition, Oxford University Press 2014).

6

Broberg and Fenger (n 5); Koen Lenaerts and others, EU Procedural Law (First edition, Oxford University Press 2014); R Barents, Remedies and Procedures

before the EU Courts (Kluwer Law International 2016); David WK Anderson and Marie Demetriou, References to the European Court (Second edition, Sweet &

Maxwell 2002).

7

Karen J Alter, Establishing the Supremacy of European Law : The Making of an International Rule of Law in Europe (Oxford University Press 2001); Clifford J

Carrubba and Lacey Murrah, ‘Legal Integration and Use of the Preliminary Ruling Process in the European Union’(2005) 59 International Organization 399;

Alec Stone Sweet and Thomas Brunell, ‘The European Court and the National Courts: A Statistical Analysis of Preliminary References, 1961–95’(1997) 5

Journal of European Public Policy; Walter Mattli and Anne‐Marie Slaughter, ‘Revisiting the European Court of Justice’(1998) 52 International Organization

177; Geoffrey Garrett, ‘The Politics of Legal Integration in the European Union’(1995) 49 International Organization 171; Karen Alter, ‘Explaining National

Court Acceptance of European Court Jurisprudence: A Critical Evaluation of Theories of Legal Integration’in Anne‐Marie Slaughter, Alec Stone Sweet and

Joseph Weiler (eds), The European Court and National Courts‐‐Doctrine and Jurisprudence: Legal Change in Its Social Context (Hart Publishing 1998); Hjalte Ras-

mussen, On Law and Policy in the European Court of Justice : A Comparative Study in Judicial Policymaking (M Nijhoff 1986).

ŠADL AND WALLERMAN 417