Application for a preliminary ruling before the Court of Justice
A. The preliminary ruling before the Court of Justice
The European Union’s preliminary ruling/reference procedure applies when, in a case before a national court, the judge is faced with a question, on the interpretation or validity of EU law that has no straightforward answer.
Thus, the preliminary ruling procedure provides an avenue for direct inter-court communication between national courts and the Court of Justice of the European Union in cases of doubt regarding a European provision. Article 267 of the Treaty on the Functioning of the EU (TFEU), which defines the preliminary ruling procedure, allows for ‘the clock to be stopped’ and gives the national courts the possibility to seek help from the ECJ in the interpretation and construction of EU law and also gives the ECJ the opportunity to intervene while the case is still pending before a national court. This ruling will provide binding authority when subsequently the referring national court is to decide the dispute before it.
B. The preliminary ruling procedure before the national court and the Court of Justice
The national court may (and sometimes must) refer the question regarding the interpretation of to the ECJ for a preliminary ruling when a doubt regarding a European provision arises in a case which is brought before it.
Article 267 TFEU specifies that a referral to the Court of Justice may be also requested by one of the parties involved in the dispute or even by both parties with a relevant application before the national court. Although, the decision to do so rests with the national court.
The proceedings start with a request from a national court, which submits to the ECJ the decision to which the preliminary question relates and a copy or summary of the file for the proceedings. During the hearing of the case the parties have the opportunity to submit written observations. After the Advocate-General has delivered his/her conclusions, the Court of Justice will issue judgment in open court and will inform the parties concerned of its judgment beforehand. The judgment is then announced to all parties and to the court that referred the preliminary question. The Court’s interpretation is applicable from the entry into force of the provision that the Court interpreted.
C. The case we brought before the District Court
Recently our law firm brought before the District Court of Nicosia a case in which an application requesting the Court’s order for a submission of preliminary questions before the ECJ was filed.
The facts in the aforementioned case were the following:
The plaintiff was a Polish worker who was employed by the defendant in several EU member states. The defendant was a private limited company registered in Cyprus and carried out the business of an international temporary agency. The defendant maintained a fully fledged office in Cyprus and managed its client operations from Cyprus and other EU member states. At the material time the plaintiff is employed by the defendant and worked in Romania.
The plaintiff is registered with the Cyprus social security department. The defendant is registered as an employer with the social security department.
Following the provisions of national law the employer and the employee are obliged to pay social security contributions at the social security department of the Ministry of Labor and Social Security. The defendant, being a Cyprus company, had paid social security contributions for the plaintiff in Cyprus by virtue of the provisions of social security Regulation (EC) 883/2004 on the coordination of social security systems.
Following Article 16 of Implementing Regulation (EC) 987/2009, which lays down a new procedure for the application of Article 13 of Regulation (EC) 883/2004, the plaintiff did not received a valid A1 document for his employment in Romania from the Social Security Department of Cyprus.
The plaintiff alleged that his social security contributions for the periods not covered by A1 documents must be paid by the defendant in Romania and/or the EU country where he works and not in Cyprus.
Thus, the claim encountered by the plaintiff aroused from the interpretation of the applicable in this case articles of Regulation (EC) 883/2004 and Implementing Regulation (EC) 987/2009.
For the abovementioned reason, an application requesting the Court’s order for a submission of preliminary questions before the ECJ was filed before the national court. In cooperation with the other side we filed a statement of accepted facts together with our written submissions before the Court analyzing the legal arguments of the case and the necessity of a preliminary ruling of the ECJ.
The national court after examining the application for preliminary ruling together with the written submissions of both parties, handed out its judgment on the application. With its judgment the Court approved the application related to the preliminary question before the ECJ and also gave instructions to the Registrar of the Court to prepare the questions for the ECJ. Furthermore, the Court suspended the relevant procedure before the Courts of Cyprus until the ECJ has delivered its ruling on the reference. Consequently, the National Court remained seized of the case, which is still pending before it.