• In the case of Joined Cases C-188/10 it was held that a national court which considered that a provision of national law was not only contrary to EU law but also unconstitutional, was still obliged under the Art.267 TFEU to refer questions to the European Court of Justice on the interpretation or validity of EU law despite it also having to make a mandatory reference to the constitutional court as to the national law’s constitutionality

Facts of the Case

  • The European Court of Justice was asked for a preliminary ruling on whether Art.267 TFEU precluded legislation which required a national court to rule as a matter of priority on referring to the constitutional court a question about a national provision’s consistency with the constitution, when at the same time there was a question as to its consistency with EU law.

Issues in Joined Cases C-188/10

  • Whether Art.267 TFEU precluded the Member State’s legislation.

Held by European Court of Justice (Grand Chamber)

  • Preliminary Ruling given.


  • Article 267 TFEU does preclude member state legislation which established an interlocutory procedure for the review of constitutionally of national laws if the priority nature of the procedure prevents all other national courts from exercising their right to make a preliminary reference to the CJEU.
  • “Article 267 TFEU precludes Member State legislation which establishes an interlocutory procedure for the review of the constitutionality of national laws, in so far as the priority nature of that procedure prevents – both before the submission of a question on constitutionality to the national court responsible for reviewing the constitutionality of laws and, as the case may be, after the decision of that court on that question – all the other national courts or tribunals from exercising their right or fulfilling their obligation to refer questions to the Court of Justice for a preliminary ruling. On the other hand, Article 267 TFEU does not preclude such national legislation, in so far as the other national courts or tribunals remain free: to refer to the Court of Justice for a preliminary ruling, at whatever stage of the proceedings they consider appropriate, even at the end of the interlocutory procedure for the review of constitutionality, any question which they consider necessary, to adopt any measure necessary to ensure provisional judicial protection of the rights conferred under the European Union legal order, and to disapply, at the end of such an interlocutory procedure, the national legislative provision at issue if they consider it to be contrary to European Union law. It is for the referring court to ascertain whether the national legislation at issue in the main proceedings can be interpreted in accordance with those requirements of European Union law” [1]