The art.234 procedure acts as a mechanism by which national courts may apply to European Court of Justice (ECJ), when there is a question regarding the interpretation or validity of the Acts of Community Institutions. It is often said that this procedure is the most important procedural provision of the EC Treaty (Tridimas, 2004, p. 125). When the case has been heard by the ECJ it is then returned to the national court for it to be applied, as it is a judicial device and not an appeal system, it is for the national courts to apply for the procedure not the parties to a case. A preliminary ruling (PR) could be so specific and detailed that it borders on deciding the case and so a clear distinction must be made between interpretation and application as art. 234. gives the court no jurisdiction either to apply the Treaty to a specific case or to decide upon the validity of a provision of domestic law (C6/64 Costa v Ente Nazionale per lEnergia Electtrica (1964) ECR 585). Under art. 225(3) of the Treaty of Nice the Court of First Instance (CFI) also possesses jurisdiction in certain areas to give preliminary rulings, this was done in an attempt to relieve the work load of the ECJ. It provides that where the CFI considers that the case requires a decision of principle likely to affect the unity or consistency of Community law, it may refer the case to the ECJ. It goes on to provide that where there is a serious risk of the unity or consistency of Community law being affected rulings of the CFI may be subject to review by the ECJ. The potential problem with this provision lies within the lexis of the provision itself, e.g. the use of ambiguous phrases such as likely to affect the unity or consistency, serious risk and decision of principle begs the question, what do they specifically include?
The ECJ is not permitted to rule on the interpretation of national law however, its jurisdiction is very wide in that it is permitted to rule on the interpretation of the Treaty, acts of the institutions (both binding and non-binding) and of statutes of bodies established by an act of the Council. When it comes to validity the ECJs jurisdiction is confined to acts of the institutions.
The first of the procedures primary purposes is to ensure the uniformed interpretation of Community law throughout all Member States. Allowing national courts to apply their varied individual interpretations to Community law would undermine the underlying principle of the supremacy of EC law and this in turn provides consistency. Subsequent is the development and extension of legal order, where by an interpretive obligation, is placed on Member States (MS) to interpret legislation in accordance with the aims and purposes of the directives (C14/83 Von Closon and Kamman (1984), If a MS is in breach of its obligations and an individual has suffered then compensation maybe awarded, (Francovich (1992))). Thirdly the procedure allows national courts to familiarise themselves with the workings of the European legal order. And finally preliminary rulings have been used to determine whether Treaty provisions and secondary legislation satisfy the criteria for direct effect.
As art 234 only sanctions requests from courts or tribunals the test is very wide (A court or tribunal includes any body with official backing which exercises a judicial function according to the normal rules of adversarial procedure and has the power to give binding determinations of legal rights and obligations, independent of the parties in the dispute C54/96 Dorsch Consult (1997) at p. 23) thus is not a necessity for the body to be recognised as a court or tribunal under national law (C24/92 Corbiau v Administration des Contributions (1993) ECR I-1277; Italys Bar Council (Gebhard (1996) E.R.C. 4165)). When deliberating whether a body is said to be a court or tribunal the ECJ will take a number of factors into consideration e.g. inter partes (C54/96 Dorsch Consult (1997) at p. 30) procedure. In Broekmeulen (C246/80 Broekmeulen v Huisarts Registratie Commissie (1981) ECR 2311. The ability to practise as a medical practitioner was dependent on registration with the committee and one-third of the Committees members were appointed by the Dutch government; 61/65 Vaassen (ne Gbbels)  ECR 261), a Dutch body called the Appeals Committee for General Medicine that heard appeals from the medical disciplinary tribunal was held to be a court or tribunal for the purposes of art.234. It is unclear however, if international courts such as the European Court of Human Rights are allowed to request the procedure. Courts and tribunals have the discretion under art.234(2) whether or not to refer a question to the ECJ. Nvertheless, Lord Denning in Bulmer v Bollinger ((1974) 2 CMLR 91) laid down guidelines ((a) Is the point of law free from doubt (acte clair) (b) is answer to the question conclusive of the case (c) is there a previous ruling by the ECJ on the issue (d) have the facts of the case been decided ) to which national courts can refer when considering the procedure.
Under art. 234(3) Courts of last resort are obligated to refer to the ECJ. The scope of this provision is not always clear. The ambiguity surfaces when contemplating whether it applies to courts whose decisions are not subject to appeal. The situation has been somewhat clarified by the case of Costa (C6/64 Costa v ENEL (1964) E.C.R 585), where the ECJ ruled that national courts against whose decision, as in the present case, there is no judicial remedy, must refer the matter to the ECJ (Another example is where a case being heard in the Court of Appeal (CA) is denied leave to appeal to the House of Lords by both courts, the CA in those circumstances would not be a court of last resort under art. 234(3)). Even so, there still exists the abstract theory that argues that art.234(3) can only mean the highest court in the country.
A court of last resort may be sometimes relived from its obligation to refer a question to the ECJ. This principle is sanctioned from French law and is known as acte clair and its guidelines were laid down in the CILFIT (C283/81 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health (1982) ECR 3415) case. This doctrine is accepted by the ECJ where (i) the question of Community law was irrelevant; (ii) the provision had already been interpreted by the ECJ and; (iii) the correct application is so obvious that it leaves no room for doubt. The last of the above conditions was qualified with other considerations these are that (a) acte clair should not be used too often; (b) the national court must be convinced that the matter is equally obvious to courts of other MS as well as the ECJ and; (c) the national court must compare the different versions of the text in the various community languages, it must also bear in mind that legal concepts and terminology do not necessarily have the same meaning in Community law as in national law. It is argued that such narrow guidelines deprive the doctrine of any practical implementation, utilising the very last consideration as an example; it is an extremely daunting task taking into consideration not only the different legal concepts in different jurisdictions but also he vast number of languages of the EU. But according to authors like Weatherill recent English decisions have made use of the acte clair doctrine which have demonstrated confidence in the interpretation of Community law (1987, p. 1)
Acte clair cannot be used to substantiate the invalidity of Community legislation (C314/85 Foto-Frost v Hauptzollamt Lbeck-Ost (1987) E.C.R. 4199). Although the ECJ has in a few cases refused its jurisdiction, it has despite a constantly growing workload, encouraged national courts to refer (Steiner, 2003, p. 551). However, the ECJ will refuse to hear a request if it falls outside of art.234 (C102/81 Nordsee Deutsche Hochseefischerei GmbH v Reederei Mond Hochseefischerei Nordstem AG & Co.AG (1982) E.C.R. 1095); if the request has nothing to do with Community law (C318/00 Barcardi-Martini v Newcastle United FC (2003) 552 not reported ); if there is the absence of a genuine dispute (C104/79 Foglia v Novello (No 1) (1980) E.C.R. 745) or if the question is hypothetical (93/78 Mattheus v Doego (1978)).
The call for reform of the art.234 procedure is due to the large backlog of requests. The increase in requests can be attributed to the increased number of MS and the increasing number of languages used. One proposed reform is the restriction to seek references to national courts-of-last-resort only. Although this would considerably lighten the ECJs work load it is criticised as it threatens the uniformity of EC Law and the problem would be transferred to the national systems as parties would continuously appeal to get to the court-of-last resort. One argument put forward supporting this reform is that the goal of the ECJ is the preservation of uniformity…. and so the procedure should only be entrusted to the highest court inside the legal order concerned (Lenaerts, 2004, p. 29).
The second suggestion is that of filtering i.e. ECJ/CFI should be allowed to select cases according to their complexity or importance. The obvious benefit of such a reform is the reduction in work load but also it may encourage national courts to be more selective. Again a criticism of this is that is may distort uniformity, it may also deter prospective references as it may be feared that the request may be denied outright. In 1999, the European Commission proposed that a sentence be added to the existing article requiring national courts to specify why the validity or interpretation of the Community law raises difficulties in the case before it. The final most radical of reform is that of decentralisation, which involves creating regional courts in each member state. The most evident downfall of such a system is divergent ruling from the separate courts and thus an erosion in the consistency of EC law, however such a reform would drastically reduce the workload of the ECJ and CFI.
C-54/96 Dorsch Consult (1997)
C6/64 Costa v Ente Nazionale per lEnergia Electtrica (1964) ECR 585.
Lenaerts, K (2004) The Unity of European Law and the overload of the ECJ The Sysytem of Preliminary Rulings Revisited.
Steiner, J(2003) Textbook on EC law. Oxford : Oxford University Press
Tridimas, T (2003) Knocking on Heavens Door: Fragmentation, efficiency, and defiance in the preliminary ruling procedure. Common Market Law Review 40(1), 9-50
Weatherhill, S (1987) “Acte clair” In the English Courts. New Law Journal. Vol 137 No. 6326 p. 942
C318/00 Bacardi-Martini v Newcastle United FC (2003) 552 not reported
C246/80 Broekmeulen v Huisarts Registratie Commissie (1981) ECR 2311.
Bulmer v Bollinger (1974) 2 CMLR 91
C6/64 Costa v Ente Nazionale per lEnergia Electtrica (1964) ECR 585
C24/92 Corbiau v Administration des Contributions (1993) ECR I-1277
C54/96 Dorsch Consult (1997)
C104/79 Foglia v Novello (No 1) (1980) E.C.R. 745
C314/85 Foto-Frost v Hauptzollamt Lbeck-Ost (1987) E.C.R. 4199
C55/94 Gebhard v Consiglio dellOrdine degli Avvocati e Procuratori di Milano (1996) E.C.R. 4165
93/78 Mattheus v Doego (1978)
C102/81 Nordsee Deutsche Hochseefischerei GmbH v Reederei Mond Hochseefischerei Nordstem AG & Co.AG (1982) E.C.R. 1095
C283/81 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health (1982) ECR 3415
61/65 Vaassen (ne Gbbels)  ECR 261
C14/83 Von Closon and Kamman (1984) E.R.C. 1891