A Supreme Court Cannot Simply Stay Silent: Refusing a Preliminary Reference Requires Reasons
The preliminary reference procedure is one of the central mechanisms ensuring the uniform interpretation of European Union law. For that reason, national courts against whose decisions there is no judicial remedy have a specific obligation to refer questions concerning the interpretation or validity of European Union law to the Court of Justice of the European Union. The judgment of the Court of Justice of the European Union in Case C-767/23, Remling, of 24.03.2026 clarifies that this obligation cannot be bypassed even where national procedural law allows a supreme court to decide by means of a summary statement of reasons.
The case arose in the Netherlands in proceedings concerning a Moroccan national whose wife and children lived in the Netherlands and were Dutch nationals. He applied for a residence permit valid throughout the European Union, but the application was refused because he already held a residence permit in Spain. After his action before the District Court of The Hague, sitting in Utrecht, was dismissed, he appealed to the Dutch Council of State. That court had to consider whether it could dismiss the appeal by means of summary reasoning without explaining in detail why it was not making a preliminary reference to the Court of Justice of the European Union.
The Court of Justice of the European Union recalled that a court of last instance may be relieved of its obligation to make a preliminary reference only in three situations. First, where the question of European Union law is not relevant to the resolution of the dispute. Second, where the provision of European Union law at issue has already been interpreted by the Court of Justice of the European Union. Third, where the correct interpretation of European Union law is so obvious as to leave no scope for any reasonable doubt.
The core of the judgment lies in the duty to give reasons. If a national court of last instance concludes that one of those exceptions applies, it must state specific and concrete reasons for that conclusion. It is therefore not sufficient merely to dismiss an appeal briefly or to state in general terms that a preliminary reference is unnecessary. The court must explain, in light of the factual and legal circumstances of the case, why the question is irrelevant, why it has already been answered by the case-law of the Court of Justice of the European Union, or why the interpretation is so clear that no reasonable doubt remains.
At the same time, the Court of Justice of the European Union accepted that national procedural law may allow summary reasoning in the interests of the proper administration of justice, including in order to shorten proceedings and enable supreme courts to focus on cases of broader importance. However, such procedural rules cannot weaken the obligation arising from Article 267 of the Treaty on the Functioning of the European Union. Even a concise decision must contain sufficiently specific reasons explaining why the court of last instance refused to refer the matter to the Court of Justice of the European Union. In that respect, the court may adopt the reasoning of a lower court, provided that the lower court clearly explained why one of the exceptions to the obligation to refer applies.
The practical importance of the judgment is clear for supreme courts across the Member States. A court of last instance is not required to refer every question proposed by a party, but if it refuses to make a reference, it must be able to justify that refusal in a concrete and persuasive manner. The judgment therefore strengthens the transparency of judicial reasoning, the predictability of the application of European Union law and the procedural protection of parties in cases where a national court decides not to engage in dialogue with the Court of Justice of the European Union.
