Enforcement Actions and the Preliminary Reference Procedure
Enforcement actions and preliminary references
This domain tests the judicial architecture: infringement proceedings, annulment, failure to act and the preliminary reference. Know who can bring which action, the time limits and the division of labour between national courts and the CJEU.
Core rules
- Art 258 TFEU: Commission v Member State. Pre-litigation letter and reasoned opinion; CJEU declaratory judgment; Art 260 financial penalties for non-compliance.
- Art 259 TFEU: Member State v Member State.
- Art 263 TFEU: annulment of EU acts. Privileged applicants may challenge; natural and legal persons must be directly and individually concerned, or challenge a regulatory act not requiring implementing measures.
- Art 265 TFEU: failure to act.
- Art 267 TFEU: preliminary references by courts or tribunals. Lower courts have discretion; last-instance courts must refer unless acte clair or acte éclairé applies. Validity references are mandatory where the national court has doubts.
Worked example
A national last-instance court must decide a case involving the validity of a Commission regulation. It considers the regulation obviously valid. Under Art 267, a last-instance court cannot refuse to refer a validity question merely because it is convinced of validity; validity references are not subject to the acte clair exception in the same way. It must refer to the CJEU.
Traps
Art 267 is not an appeal; the national court decides the facts and the dispute. The CJEU interprets EU law, it does not apply it to the facts. Art 263 time limits are strict, generally two months. Individuals do not bring Art 258 proceedings directly; they may complain to the Commission.