Lexicon > Preliminary question

IP Lexicon

Preliminary question

European Union (EU) law now influences the legislation of the member states in increasingly diverse areas, including economic and monetary law, banking law, digital law and related rights.

The national courts of the EU Member States must apply, in addition to national law, the primary law of the EU (i.e. the treaties), as well as secondary law (i.e. regulations, directives and decisions of the bodies and institutions of the European Union).

The integration of EU law into the French legal system was affirmed by the so-called Nicolo decision of the Conseil d’Etat (CE, Ass., October 20, 1989, no. 108 243).

In this decision, the French administrative judge accepted to control the compatibility of a law, even a later one, with the stipulations of a treaty.

In order to preserve an effective and homogeneous application of European Union law and to promote the harmonization of interpretations, the mechanism of the preliminary ruling has been put in place.

This is the procedure by which a domestic court (in France, the Tribunals, Courts of Appeal, the Court of Cassation and the Council of State) questions the Court of Justice of the European Union (CJEU) on the interpretation, validity or applicability of a provision of European Union law in the context of a dispute before it.

The CJEU then carries out a kind of control on the application of a text in the context of a dispute submitted to a national judge and has the role of enlightening him.

There are two types of preliminary questions:

  • The reference for interpretation of the norm of the European Union law: the national judge asks the CJEU to provide clarification as to the interpretation to be given to the rule of law (primary or secondary) in question, in order to apply it correctly in the context of the dispute submitted to it;
  • The reference in validity of a norm of the European Union law: the national judge asks the CJEU, not to interpret the norm, but to control its validity. If the CJEU declares the norm referred to invalid, the national provisions adopted in application of the norm of European law are consequently annulled.

When a domestic court refers a question to the CJEU for a preliminary ruling, the national proceedings are suspended and the domestic court stays the proceedings until the Court has answered the question.

The decisions of the Court of Justice of the European Union on references for preliminary rulings have the force of res judicata.

They are binding on the national court initiating the question and, in principle, set the precedent for all other national courts of the Member States that are faced with a question of the same nature.

Domestic judges are therefore obliged to apply the decisions of the CJEU.

Legislation and jurisprudence in the field of intellectual property are constantly evolving, especially with the emergence of digital technology.

Therefore, it is recommended to seek the advice of a lawyer specialized in this field who is aware of the applicable rules (notably those provided for by the Intellectual Property Code) and of the judges’ appreciation.

Indeed, if the solution of a dispute is inevitably subject to a judicial hazard, it is essential for the owner of intellectual property rights to know the law applicable to the case in question and the resulting case law.

Point of law

Article 267 of the Treaty on the Functioning of the European Union states that :

“The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings :


on the interpretation of treaties,

b) on the validity and interpretation of acts taken by the institutions, bodies, offices or agencies of the Union.

Where such a question is raised before a court of one of the Member States, that court 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 on the question.

Where such a question is raised in a case pending before a national court or tribunal against whose decisions there is no judicial remedy under national law, that court or tribunal is required to refer the matter to the Court.

If such a question is raised in a case pending before a national court concerning a detained person, the Court shall decide it as soon as possible. ”

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