The “Luxemburg VAR”: How the EU’s preliminary ruling procedure works

Under the EU treaties, a cooperation procedure has been established between member states pursuant to which national courts have an obligation to refer unresolved questions of EU law to the Court of Justice of the European Union (CJEU – based in Luxemburg) for interpretation. This is known as the ‘preliminary ruling’ procedure and it has its roots in Article 267 of the Treaty on the Functioning of the EU (TFEU). The procedure plays a pivotal role in the EU’s legal order, as a precise and consistent interpretation of EU law across all member states is vital for legal certainty and effective functioning.

In recent years, sports organisations have significantly increased their business activities within the EU, with UEFA alone announcing billions of dollars in revenue¹ from their three marquee competitions. It is perhaps therefore unsurprising that the sports sector has seen itself confronted with the preliminary procedure multiple times, particularly in relation to the application of its regulations. The high-profile cases of the European Super League² (concerning UEFA’s threat to ban participating clubs from UEFA competitions); and Royal Antwerp FC³ (concerning the legality of UEFA’s “home grown players” rules) are good examples of preliminary rulings in use (and can be read about in more detail here⁴ and here⁵).  And in the recent case of FIFA v BZ (C‑650/22), the Court of Appeal, Mons, Belgium has requested a preliminary ruling on the compatibility of Article 17 of FIFA’s Regulations on the Status and Transfer of Players with EU law (with AG Szpunar issuing his non-binding opinion on 30 April - available here).

Accordingly, this article explains how the EU’s preliminary ruling procedure works, and the consequences of a preliminary ruling on national courts and member states:

• Article 267 TFEU
• The indirect nature of the procedure
• Can the parties require national courts to request a preliminary ruling?
• What about the procedure when it is pending before a national court of last instance?
• Can the CJEU apply a preliminary ruling to the national procedure?
• What is meant by ‘national court or tribunal?’
• The consequences of a preliminary ruling