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In its jurisprudence relating to Article 267 TFEU, the Court of Justice of the European Union seems to oscillate between two different approaches. According to the jurisprudential mainstream, the preliminary ruling is an instrument of dialogue between national courts and the Court of Justice. This constant dialogue can fulfill the role assigned to the Court to ensure consistency of interpretation and application of Union law. Another line of cases, however, seems to make preliminary rulings means for individuals to ensure their rights which derive from EU law. These two visions of the preliminary references recently have been opposed in discussions about a particular aspect of the preliminary procedure, which is the late withdrawal of the question referred by the national court. In fact, when the national court considered that the response of the Court of Justice was not “necessary to render judgment,” it could, at any time, including both before and after the deliberate publication, date the judgment to the parties and remove this issue. Therefore, the jurisdiction of the Court of Justice became dependent on matters of procedure (dealings between the parties, amicable agreements, etc.) that occurred in extremis before the national court, which sometimes cast doubt on a possible manipulation of the Court by the parties to the main proceedings. It became necessary to find a solution to solve this problem. The two different visions were then compared. If the preliminary ruling is conceived as an additional instrument for the rights that individuals derive from EU law, there is no need for the Court of Justice of the European Union to make a decision when the dispute is resolved before the national court and the defendant has obtained satisfaction. Conversely, if the preliminary ruling is conceived as an instrument to ensure the uniform application and interpretation of EU law, this judgment may be necessary. In fact, without deciding in abstracto, the Court in its judgement will anchor an interpretation that should be applied in all similar cases in the courts of the 27 Member States. In this case, a judgment may still be necessary, even if the dispute before the national court ended off. In order to preserve this approach, the new Rules of Procedure now contain a provision in Article 100 (1) which reads as follows: “The Court shall remain seised of a request for a preliminary ruling for as long as it is not withdrawn by the court or tribunal which made that request to the Court. The withdrawal of a request may be taken into account until notice of the date of delivery of the judgment has been served on the interest persons referred to in Article 23 of the Statute”. Thus, the late withdrawal of a request for a preliminary ruling is clearly limited in time and, even if such removal would occur in extremis, the judgment of the Court will be delivered in the interest of interpretation and uniform application of Union law.

Comment traiter le retrait tardif d'une demande de décision préjudicielle