PRAWOMOCNOŚĆ A PROCEDURA ZAPYTANIA WSTĘPNEGO O WAŻNOŚĆ AKTÓW WSPÓLNOTOWYCH WEDŁUG ART. 234 TRAKTATU O USTANOWIENIU WSPÓLNOTY EUROPEJSKIEJ

Abstract

The article deals with the relation between the action for annulment under Art 230 EC and the control of validity within the scope of the preliminary ruling procedure under Art 234(1) (b) EC. Despite some fundamental differences between both procedures - Art 230 EC is a direct action before the community courts, while Art 234 EC is a procedure of co-operation between national courts and the ECJ - overlaps are possible: After expiration of the time-limit, pursuant to Art. 230(5) EC, legal acts of community institutions become final. Yet, since the institution of a preliminary ruling procedure is not subject to any time-limit, such legal acts can be subject to a preliminary reference concerning their validity after the time limit pursuant to Art 230(5) has already expired. Making a reference in favour of a person who could bring an action for annulment against such an act but has failed to do so, would thus circumvent the finality of that act. For this reason the ECJ rejects references concerning the validity of acts under Art 234 EC, if an annulment action of the person in whose favour the reference is made was obviously admissible but no such action was brought. The article analyses the case-law existing on this issue and attempts to determine more precisely the criterion of obviousness. In addition, the article highlights constellations of overlap that have not yet been subject of the existing case-law.