The analysis about the breach of European Law by the Member States usually bring attention on the ranking of non-compliant States that is drawn up annually by the European Commission. The Commission publishes statistics on different aspects of compliance with EU law, ranging from the number of infringement procedures initiated and concluded to the average time in transposing EU directives. Attention, however, usually stops at checking which states occupy the first four or five positions of the ranking of noncompliance.
Other issues such as the causes of non-compliance, or the possible relationship with other institutional factors in the interplay between the European and national legal systems receive less attention. Within the group of institutional factors, one arising question is whether the use of preliminary rulings is related to the degree of compliance of European Union law by Member States. The mechanism of interpretative preliminary rulings allows national courts to consult the Court of Justice of the European Union (ECJ, hereinafter) about the interpretation and scope of European law, as well as its compatibility with specific provisions of national legal systems . Although the ECJ restricts its intervention to clarifying the limits of European Union law not deciding on the merits of the issue at issue, the ruling and the arguments used become part of the European legality block with binding effects for the Member States.
Consequently, it is expected that the more use of preliminaring rulings the lowe the level of non-compliance since national legal systems are depurated. Ultimately, questions of interpretation is a mechanism for preventing inconsistencies between national and European systems. In order to analyze this relationship, we elaborate a database consisting of 365 CJEU judgements over preliminary rulings for the last five years (November 2013 and 2018). The database has been prepared by Alba Pérez as part of the internship program at the Local Law Institute of the Autonomous University of Madrid. The result obtained after the random sampling is consistent with the identification of the States that concentrate the largest number of preliminary rulings and that is made in the Annual Activity Reports of the Court of Justice of the European Union. The results are presented with a confidence level of 95% and a +/- 5% error margin.
Figure 1 depicts the relationship between the number of judicial infringement proceedings closed for breach of European Union law (vertical axis) and the number of preliminary questions addressed in each of the Member States (horizontal axis). The vertical axis represents the procedures that concluded with the conviction of the offending State. This non-compliance measure is more appropriate for the purpose of the analysis than the number of non-compliance procedures initiated by the Commission because, although they have a much higher number, they tend to conclude without opening the judicial phase.
Graph 1. Non-compliance and preliminary rulings by Member State (2013-2018).
Note: Prepared by the authors on the basis of the database of preliminary rulings (IDL-UAM) and database of procedures for non-compliance with European law (EuropeanCommission http://ec.europa.eu/internal_market/scoreboard/performance_overview/ index_en.htm).
Contrary to expectations, the results show that the greater use of interpretative rulings does not seem to be related to a lower number of judicial proceedings for non-compliance. Both magnitudes seem to be positively related so that those States that have the highest number of cases of noncompliance are also those where courts and tribunals most frequently use preliminary rulings.
This result could be due to the existence of other factors that influence simultaneously to both magnitudes. In this sense, the complexity of different levels of government with legislative and regulatory powers in some Member States may suppose a greater risk than in the unitary systems to guatantee the uniform application of European Union law. In this sense, some of the countries with high levels of legislative decentralization (Spain, Germany, Belgium) or administrative decentralization (Italy and France) also present high values in both dimensions (non-compliance and preliminary rulings) .
Beyond the internal institutional factors of the Member States, the lack of a relationship between the greater use of preliminary rulings and the lesser breach of European law may be due to the very configuration of these procedural mechanisms. In particular, the interpretive question has a number of characteristics that may limit its scope as a mechanism for adapting the national legal order to European law. In the first place, the reference for a preliminary ruling is a judicial cooperation mechanism. In spite of the broad interpretation of which bodies can refer the preliminary ruling by the EJC, the reference for a preliminary ruling usually originates in a case that has been brought before the courts. Additionally, the use of the reference for a preliminary ruling is generally associated with the discretion of the court hearing the main action. These circumstances limit the scope of the reference for a preliminary ruling, for example, in cases that are not appealed before the courts, but are not exempt from the application of European Union law.
Secondly, preliminary rulings do not always refer to the compatibility between the interpretation made by the ECJ of European norms and the national legal order. The ECJ has shown some flexibility in the admission of preliminary rulings when, in a general way, there are doubts about the interpretation of European law. Sometimes the weak foundation of the relationship between the question submitted and the specific conflict at the national court is only justified in a general and abstract manner (for example, Banque internationale pour l ‘ Afrique occidentale SA (BIAO) C-306/99). In this way, the preliminary ruling mechanism is also limited in order to warn of possible inconsistencies between European and national regulations. In this sense, the judgments analyzed show how, in general for the group of Member States, the frequency of general questions regarding the interpretation of some European principle (58.6%) are more frequent than those regarding compatibility. between the European and the national regulation (41%). This scenario changes, as it is expected, when questions about the interpretation affect a European directive where questions about compatibility with the national standard reach 46% of the cases analyzed.
This last result is relevant because it suggests a certain relationship between the functioning of both mechanisms. In this way, the previous conclusion about the absence of a relationship based on the global figures in the use of both procedures must be qualified when the analysis includes the subject of the procedures. Thus, the lower frequency of preliminary rulings in certain matters is related to a higher number of cases of infingement procedures. This scenario is, therefore, more accused in those matters that are judicialized less frequently and where, consequently, there are fewer possibilities for a pre-judicial question of interpretation to arise. Although the limitations of this analysis do not allow the presentation of conclusive empirical evidence, the suggested relationship points again to the limitation of the mechanism of the preliminary rulings to detect inconsistencies between the European and national legal order.
The results presented lead to a broader reflection on the need to improve the procedural mechanisms for a uniform application of EU law. An immediate response would be to broaden the scope of the reference for a preliminary ruling because from a material perspective a certain effect is observed in the lowest level of infringement in those sectors in which preliminary rulings are more frequent. To this regard, several alternatives may be presented such as a greater flexibility in terms of the bodies with the capacity to raise a preliminary question or an extension of national bodies involvement during the process in order to specify and link the issue to the contentious issue at the national level. However, these measures would call into question the capacity of the ECJ, which presents a 16 months average of time disposition for preliminary rulings. In addition, an extension of the possibilities of applying preliminary rulings would presumably lead to less flexibility in the admission of the preliminary ruling by the ECJ.
Finally, not all disputes are brought to a court. Given the limitations of the configuration of the preliminary ruling, it might also be appropriate to explore the feseability of similar procedures in the administrative phase. The commisisonmay also be involved in its task of enforcing EU law. The role of the ECJ as the sole interpreter of European law and its monopoly on the control of legality be respected as far as this administrative mechanism woyuld be subjected to further judicial control. Exploring administartive mechanisms would thus help to distribute the workload among the main European bodies in charge to ensure compliance with European Union Law.
Alfonso Egea de Haro y Alba Pérez Pérez. Department of Public Law and Legal Philosophy. Law School. Universidad Autónoma de Madrid.