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1、Preliminary ruling1.Introduction1.Definition of the Preliminary rulingA preliminary ruling is a decision of the European Court of Justice (ECJ) on the interpretation of European Union law, made at the request of a court of a European Union member state. Where a national court is presented with an is
2、sue of Union law that it feels it cannot resolve it can or, if a court of final instance, must, refer that issue to the Court of Justice of the European Union by way of a reference for preliminary ruling. The name is somewhat of a misnomer in that preliminary rulings are not subject to a final deter
3、mination of the matters in question, but are in fact final determinations of the law in question. Preliminary rulings most are made by the ECJ(can also be made, in certain circumstances, by the European General Court, although).A request (or reference) for a preliminary ruling is made by way of subm
4、itting questions to the ECJ for resolution. However questions are not answered in abstraction, but rather are submitted together with the circumstances leading up to their being asked. Thus whilst the ECJ is limited to deciding the law in question, the ECJs ruling frequently leave little room to rul
5、e other than in a certain way. The ECJ may also decline to give judgement in the absence of a genuine dispute.2. Objective of the preliminary ruling (1) To interpret the Union law: in order to have only one uniform interpretation in the EU(2) To assess the validity and interpretation of the EU acts
6、(of the institutions, bodies, offices or agencies of the Union); to provide a possibility for an individual to contest a EU act.3.the legal basis of preliminary rulingArticle 267 of the Treaty on the Functioning of the European Union states lays down the legal basis of preliminary ruling .as followi
7、ng: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 cou
8、rt or tribunal of a Member State, that court or tribunal 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 agains
9、t 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 a Member State with regard to a person in custody, the Court of Justice of the European Union
10、shall act with the minimum of delay.2. the normal preliminary ruling procedureArticle 20The procedure before the Court of Justice shall consist of two parts: written and oral.The written procedure shall consist of the communication to the parties and to the institutions of the Union whose decisions
11、are in dispute, of applications, statements of case, defences and observations, and of replies, if any, as well as of all papers and documents in support or of certified copies of them.Communications shall be made by the Registrar in the order and within the time laid down in theRules of Procedure.T
12、he oral procedure shall consist of the reading of the report presented by a Judge acting as Rapporteur, the hearing by the Court of agents, advisers and lawyers and of the submissions of the Advocate-General, as well as the hearing, if any, of witnesses and experts.Where it considers that the case r
13、aises no new point of law, the Court may decide, after hearing the Advocate-General, that the case shall be determined without a submission from the Advocate-General.The average time taken to respond to such requests varies at in or around 18 months. When one takes into account the procedures the Co
14、urt of Justice operates to ensure that the member states and the Union Institutions are afforded an opportunity to participate in such references and the necessity to permit all parties to plead in their own language whilst the Court works in a single language, that time scale is not unreasonable. T
15、hese facts are nevertheless of little comfort to an individual who finds his or her life suspended, perhaps in detention, whilst awaiting the resolution of a legal issue.These difficulties can be ameliorated, principally by means of provisional protective measures aimed at safeguarding the interests
16、 of the parties pending the judgment of the Court of Justice. However it is not always possible to address these difficulties by means of provisional measures: e.g. where there is a real risk that a person in detention would evade if released or where the only remedy consists of positive action on the part of the administration such that, if ordered, the claimant would obtain the benefit of a decision that s/he is not entitled at law.In order to reduce the time taken to rule upon
