Preliminary References, Effective Judicial Protection and State Liability. What if the Ferreira da Silva Judgment Had not Been Delivered?

Abstract

The preliminary ruling mechanism was designed and actually revealed itself to be a structural tool in shaping the EU legal order. Mainly serving the correct and uniform interpretation and application of EU law, the mechanism also prevents rights conferred on individuals by EU law from being infringed. Focusing on this subjective dimension of the preliminary ruling mechanism, the present analysis concerns the compliance of the obligation to make a reference for a preliminary ruling laid down in Article 267(3) TFEU and the State liability emerging from the failure to comply with that obligation. This paper aims, first, to contextualize the recent ruling in the Ferreira da Silva case within some of the fundamentals of the ECJ’s case-law, such as Van Gend & Loos, Cilfit and Köbler. Our argument will lead us to consider another case that, like Ferreira da Silva, also took place before Portuguese courts but did not result in the same outcome due to the lack of a reference for a preliminary ruling made by the court adjudicating at last instance. The Santos Pardal case, in which the ECtHR delivered judgment forty days prior to the ECJ in Ferreira da Silva, allows us to infer what might have happened had no reference for a preliminary ruling been made in the latter. We will argue that, as a result, a flaw within the Union system of protection of fundamental rights is revealed — the lack of a specific proceeding to be triggered by individuals actively vigilant in protecting their rights when faced with the systematic unwillingness of the competent national courts to attend the questions of EU law at stake.