Dr. Alexander Kornezov[1]


The question of staying the proceedings before the national court on grounds of a preliminary reference to the European Court of Justice made in another case is veiled in deep obscurity both from a national and European law perspective. It is first of all somewhat unclear whether the matter should be dealt with (exclusively) under national or European law, or under (an unidentified) combination of both. Secondly, national law often overlooks the problem either by omitting to provide for a clear solution or by simply referring to a generally applicable and broadly-cast rule whose scope is by consequence rather vague. Hence, staying the proceedings in the specific situation where a request for a preliminary ruling has been made in a different case – deemed relevant for the solution of the case at hand – remains an open, and often debatable, issue under national law. Thirdly, unlike the requirement to stay the proceedings where a request for a preliminary ruling has been made, EU law – or, for that matter, the case law of the European Court of Justice – contain no specific legal provision or rule which allows or, alternatively, requires staying the proceedings on grounds that a similar reference in a different case had already been made. This however should not in itself mean that the matter remains entirely outside of the scope of EU law.

Given the general elusiveness, or – shall we admit it? – lack of a legal framework which would deal straightforwardly with the matter, it comes as no surprise that the case law of national courts is often contradictory, or, to say the least, incoherent. The recent case law of the Bulgarian Supreme Administrative Court provides for various such examples. While part of it accepts that proceedings may be stayed until the European Court of Justice gives a ruling on a preliminary reference made in another case, its case law also contains examples whereby a stay of proceedings in similar circumstances is denied as a matter of principle. Yet another question which has been dealt with inconsistently in the case law concerns the problem of whether an appeal should lie against an order to stay the proceedings in such circumstances – the Supreme Administrative Court has given both affirmative and negative answers to this query.

It is argued that EU law is not indifferent to whether the proceedings before the national court may or should be stayed because a relevant for the subject matter preliminary reference has been made in another case. The opposite view, i.e. that the matter should be dealt with exclusively under national procedural law, is rather weak, given its potential repercussions both on the general structure of the preliminary reference mechanism and on the principle of uniform application of EU law as a whole. Indeed, the ban on staying the proceedings (as a matter of national law) unless a reference is made to the ECJ may be seen as incompatible with the principle of procedural economy and may, as a result, lead to an avalanche of successive similar or even identical references being made to the ECJ one after the other for the sole purpose of enabling the national court to stay the proceedings while the ECJ gives its ruling. On the other hand, such a ban may force national courts to give judgments which may later turn out to be wrong in the light of the subsequent preliminary ruling of the ECJ.

It is therefore submitted that the matter should be resolved under the trichtonomy formed by the principles of national procedural autonomy, the principle of effectiveness and the principle of equivalence. Such an approach makes possible to bridge the gap between national and EU law by providing a plausible and at the same time workable solution. Under Bulgarian procedural law this would mean that national courts should be able to stay the proceedings on the ground that a preliminary reference has been made in another case, if it could be demonstrated that the upcoming preliminary ruling of the European Court of Justice is both relevant and necessary for solving the case.

In addition, the procedural law of many a Member State allows to stay the proceedings, if a provision of national law applicable in a given case has been challenged before the national constitutional court. It is argued that this same rule should be applicable in circumstances where national law is challenged, by means of a preliminary reference made to the ECJ, on grounds of its incompatibility with EU law. Indeed, national procedural rules should be construed and applied in a way which is compatible with the principle of equivalence.

It is however underlined that the proceedings before the national court should only be stayed after a detailed case-by-case analysis of the relevant circumstances and the applicable law – both national and EU. This analysis should take due account in particular of the specificities of EU law which may make EU law applicable in one situation and not in another – seemingly similar – situation.

Finally, it is argued that the order of the national court to stay the proceedings until the ECJ gives judgment in a different case should be subject to appeal. Eventhough no appeal against an order for a preliminary reference to the ECJ is allowed as a matter of Bulgarian law – and, to a certain extent, as a matter of EU law after the Cartesio judgment – it is submitted that an analogy between these two situations is ill-placed. Indeed, where a preliminary reference is made to the ECJ, the proceedings, although stayed before the national court, continue before the ECJ. On the contrary, where the proceedings are stayed without a reference having been made, the case as a whole is put in the freezer for a certain period of time. If no appeal should lie against such orders which stay the proceedings, the parties would be practically deprived of their right of defence – they would not for example be able to argue that the upcoming judgment of the ECJ is irrelevant for the solution of their case. Indeed, whereas such objections may be raised before the ECJ, if a reference has been made, this is impossible in the latter scenario since no reference has actually been made, and hence, no case is pending before the ECJ. In addition, whereas in the first situation the ECJ may reject the reference on grounds of its irrelevance with regard to the main proceedings, in the latter the order of the national court to stay the proceedings would be virtually immune to any sort of judicial control.






[1] Référendaire at the European Court of Justice, Lecturer of EU law.