Introduction
The lively and longstanding doctrinal discussion on purely internal situations is symptomatic of the overall constitutional challenges intrinsic to the design of the EU legal system. It underscores the dynamism and complexity of the division of powers between the EU and the member states. It unveils the hidden limits and divergent underlying approaches to the different fundamental freedoms. It epitomises, through the side effect of reverse discrimination, the limitations of EU citizenship and renders visible the shortcomings of national constitutional approaches to the equality principle. Finally, it reflects the delicate balance between the openness of European judicial cooperation through the preliminary rulings procedure and the limits of the jurisdiction of the Court of Justice.
The purely internal rule entails that situations where all the elements are confined within a single member state fall outside the scope of EU (free movement) law. The application of this rule has met with criticism due to the apparent randomness of the concrete results produced,Footnote 1 being acknowledged at the same time as the necessary corollary of the principle of attribution of powers.Footnote 2 This debate paradigmatically illustrates the dilemmas intrinsic to European legal integration: the tension of EU law and the aspirations of further integration with the principle of conferred powers; the role of judicial interpretation and its limits; and the pressure put on member states’ action – even in their own realm of competence – by an EU legal system with sometimes blurred frontiers.
In the framework of this discussion, the Grand Chamber of the Court of Justice has recently undertaken an important clarification endeavour. The judgment in Ullens de Schooten Footnote 3 has addressed one of the most controversial issues linked to the treatment of purely internal situations: the possibility for the Court of Justice to provide answers to preliminary questions where the facts of the case are confined within a single member state. In this judgment, the Court has provided a roadmap for situations in which it may derogate from the general approach, according to which the Court does not give an answer when the rule of EU law is not per se applicable to the case, because the situation at issue does not have a connection with EU law. This clarification and rationalisation of different strands of case law that had been developed along parallel lines but in an un-systematised manner throughout the years, is drawn together in a strong message to national courts that brings to the fore the delimitation of tasks between them and the Court of Justice, and their responsibility in enabling the Court to give a response in ‘exceptional’ cases. This exercise of clarification has not, however, put an end to the debate on purely internal situations. Rather, it prompts thoughtful and thorough consideration of the conceptual limitations of the purely internal rule and the repercussions that it has on the role and jurisdiction of the Court of Justice.
This article does not intend to provide an exhaustive analysis of all the substantive problems posed by the purely internal rule, the overall limits of the scope of EU law, or the concomitant effect of reverse discrimination. It rather focuses on the intersection between the competences of the Union and the jurisdiction of the Court of Justice in connection to the notion of ‘purely internal situations’ in the light of the recent judgment of the European Court of Justice in Ullens de Schooten. The examination of that judgment invites us to revisit the broader conceptual and jurisdictional problems linked with the concept of the ‘purely internal situation’ and casts some doubt on the usefulness of the concept as such.
The article is structured as follows. The first section will place the discussion in context, briefly recalling the basic elements of the original concept of purely internal situations and the tensions to which it has been subject due to the evolution of free movement law and the problematic question of reverse discrimination. The second section will examine the jurisdictional treatment of purely internal situations by the Court of Justice in preliminary rulings. That section outlines the different lines of case law (the so-called ‘exceptions’) where, despite having identified a purely internal situation, the Court proceeds to give an answer on the merits. It also examines the contribution of the judgment in Ullens the Schooten to the systematisation and clarification of that ‘exceptional’ jurisdictional approach to purely internal situations. The problems unsolved and questions remaining after that landmark decision will be analysed in the third section. That section will first address the conceptual challenges posed by the notion of ‘purely internal situations’ both within and beyond the realm of the fundamental freedoms. From a jurisdictional point of view, that section further examines some of the challenges in terms of systematisation and coherence in the treatment and effects of preliminary rulings in the different lines of case law where purely internal situations are addressed by the Court.
It will be posited that, while the concept of ‘purely internal situations’ may retain some relative descriptive value, it is not suitable as a legal concept to which normative consequences can be systematically attached. Due to the evolution of EU law in general (covering many areas where no cross-border link is necessary) and of free movement law in particular (where actual movement is not always a requirement and potential obstacles play an increasing role), a factual setup characterised as purely internal does not necessarily attach either the irrelevance of EU law, or the lack of jurisdiction of the Court.
What is a ‘purely internal situation’
The concept
Free movement law is the core of European integration. It is based on cross-border dynamism: persons, services, companies, and goods enter the realm of the EU fundamental freedoms when they are set in motion. It may therefore not come as a surprise that the first phase of normative development of the EU legal system was focused on ensuring the implementation and buttressing of the smooth functioning of the fundamental freedoms.
In this context, the concept of ‘purely internal situations’ originated in contraposition to cross-border situations covered by the Treaty fundamental freedoms. A purely internal situation is defined by the absence of a cross-border link, namely, when all the elements of a given case are confined within the territory of a single member state.Footnote 4 The Saunders case is often cited as one of the inaugural judgments of the purely internal rule. In the framework of a preliminary question, the Court of Justice examined whether the provisions of EU law concerning free movement of workers were applicable to the facts in the main case, which concerned the application of penal measures depriving or restricting free movement within the territory of a member state. The Court found that to be a ‘wholly domestic situation’. Since the facts showed ‘no factor connecting them to any of the situations envisaged by [EU] law’ the conclusion was that they ‘fall outside the scope of the rules contained in the Treaty (...)’.Footnote 5
The notion of ‘purely internal situations’ seems therefore a clear-cut and straightforward concept, logically following the rationale underlying the fundamental freedoms. From a substantive point of view, it mirrors the limits of EU law in the internal market: it is a manifestation of the principle of attributed powers.Footnote 6 As a consequence, it would follow that, from an institutional and procedural point of view, purely internal situations also lead to limitations for the Court to examine, on the merits, a situation that factually falls outside the scope of EU law.
The tensions: evolutions of free movement and reverse discrimination
The clarity of the purely internal rule as outlined above soon encountered challenges: (i) from the point of view of its functioning as an element in the system of delimitation of powers and jurisdiction, the evolution of free movement law has shown the limits to the coherent application of the purely internal rule; (ii) from the point of view of the relationship between EU and national law, it is today apparent that the purely internal rule produces some undesired side effects, in particular, reverse discrimination. Furthermore, the Court has confirmed that its jurisdiction is not limited to situations that factually fall within EU law, leading to its jurisprudential engagement with purely internal situations in different contexts. This latter discussion will be addressed separately in the third section of this article.
Evolution of free movement law
With the evolution of EU law on free movement, the determination of what is a purely internal situation has become one of the most complex and unclear areas of interpretation of EU law. The substantive evolution of free movement law has led to an expansion of situations covered by the fundamental freedoms, with a concomitant reduction of the scope of what is deemed to be ‘purely internal’.Footnote 7 Two elements have led to this situation: the dynamic interpretation of the cross-border link from the point of view of the facts involved; and the wide approach to restrictions to movement, covering non-discriminatory obstacles, from the point of view of the rules involved.
The required cross-border connection was interpreted in the case law in a progressively broad manner.Footnote 8 Indeed, the cross-border link necessary to trigger the application of EU rules on free movement does not necessarily need to entail actual physical movement, as was made apparent in the Zhu and Chen case.Footnote 9 Moreover, case law has provided for a more comprehensive understanding of the fundamental freedoms, acknowledging that they are applicable against the member state of one’s own nationality if a previous exercise of free movement has occurred. The cross-border link is given in cases involving so-called ‘returning’ citizens; it does not require that the situation concern a member state other than the state of nationality.Footnote 10 Additionally, the dynamism of free movement has fuelled the case law of the Court, leading to the result that potential deterrents to movement may be enough to establish a cross-border connection.Footnote 11 Free movement law has moreover developed so as to cover non-discriminatory obstacles. That means that national rules that apply without distinction to national and foreign actors can eventually come under EU fire. As a result, if the non-distinctive or non-discriminatory character of a measure is ultimately not the sole decisive factor, the discussion becomes more nuanced as to the potential impact of a national rule in a cross-border context.
This evolution of free movement law has led, logically, to a decrease in factual constellations that can be materially considered ‘purely internal situations’. By progressively buttressing the substantive scope of the fundamental freedoms (ergo, of the scope of EU law),Footnote 12 the purely internal realm has shrunk. Moreover, the fact that non-discriminatory obstacles may be covered by free movement law has led to a situation in which, even though the detrimental effect on free movement is the leading force, the normative consequences of EU law are also felt in situations where national rules are applicable without distinction to static actors and free movers. The apparent simplicity of the purely internal rule has therefore given way to a complex set of questions needed to determine who can invoke EU free movement rules, under what circumstances, with regard to which rules and with which impact or consequences.
Reverse discrimination
In Saunders, the Court of Justice had already acknowledged an important reality: free movement rights conferred by the Treaty ‘may lead the Member States to amend their legislation, where necessary, even with respect to their own nationals’.Footnote 13 However, the recognition of the far-reaching normative impact of EU law, which may transform the position of actors in situations which are purely domestic, did not aim to restrict the powers of Member States in those purely internal situations.Footnote 14 This pronouncement is meaningful in the light of the previous Rutili case,Footnote 15 where the Court declared that the freedom of movement enjoyed by nationals of other member states extended to measures restricting residence in a part of a member state’s territory. That was not, however, applicable in Saunders, which was a purely internal situation falling outside the scope of EU law. Saunders and Rutili are amongst the first examples illustrating the phenomenon of reverse discrimination, whereby EU law free movement rules have as a consequence that nationals of other member states are placed in a more favourable position than ‘static’ nationals (i.e. those not having exercised the fundamental freedoms).
Seen from this perspective, the purely internal rule entails a difference of treatment in two parallel situations. Whereas a cross-border situation receives the protection of EU law, a corresponding internal situation – even though it involves similar (but non-cross-border) facts – would not.
The phenomenon of reverse discrimination has become apparent in different fields of EU law, and paradigmatically, with regard to family reunification.Footnote 16 It has moreover often channelled tensions in politically sensitive situations concerning federal arrangements, where the compatibility with EU law of differences in treatment across the different territorial subdivisions of a member state is contested.Footnote 17
Against this framework and despite intense academic debate on possibilities for overcoming reverse discrimination,Footnote 18 the Court has consistently confirmed that reverse discrimination is not precluded as a matter of EU law.Footnote 19 The Court has consequently placed the responsibility to remedy this side-effect and undesired outcome on the member states: reverse discrimination is a purely internal matter. Since the EU equal treatment principle cannot be invoked in this context, only national equal treatment principles can provide a remedy.Footnote 20
The phenomenon of reverse discrimination is therefore acknowledged to be inevitable: it is the flip side of the coin of purely internal situations and an intrinsic by-product of the principle of attributed competences in the field of the fundamental freedoms. However, from a broader constitutional perspective, the elusive contours of the cross-border aspect make reverse discrimination an element of discomfort.
This is all the more so since the introduction of the status of EU citizenship. Indeed, in our days, the dichotomy between cross-border and purely internal has lost much of its original legitimacy as the central and decisive element for the determination of the applicability of EU free movement and EU citizenship law. This is in the first place because the normative dynamics of EU law have long since surpassed the scope of free movement: reverse discrimination is often a result of the way in which EU competences are used (or not used), and not an inevitable consequence of the limits placed on those competences. Second, the concept of EU citizenship itself, a fundamental status embodying the aspiration of shared status and rights, puts pressure on the unequal treatment of equivalent situations that often ensues from the complex entanglement of national and EU rules and principles.Footnote 21
The jurisprudential treatment of purely internal situations
Once it has been acknowledged that a situation does not have any cross-border link and that it should be qualified as a wholly internal situation, how does this affect the jurisdiction of the Court of Justice? Can the Court, under such circumstances, address the merits of a given case or give an answer to a preliminary question? That is, of course, a question for which there is no definitive answer. Rather, a correct response very much depends on the procedure by which an issue arrives before the Court (and – if a preliminary ruling – on the national procedure under which the main case originated).
Just to refer briefly to the most common proceedings, annulment and infringement actions do not pose much of a problem. One could very well imagine, in the context of the fundamental freedoms, an action for annulment based on the lack of competence to adopt an EU act because it concerns purely internal situations.Footnote 22 A member state could also argue, as a defence in an infringement procedure, that a situation at issue is not covered by EU law because it is purely internal.Footnote 23 In both cases, the determination of the jurisdiction of the Court would not present any great challenge, and the nature and effects of the allegedly purely internal character of a situation/rule would be examined on the merits. True difficulties arise, however, in ascertaining the jurisdiction of the Court in the preliminary ruling procedure. It is in that context that the jurisdictional approach to purely internal situations has developed quite broadly, to the extent that the issue of the scope of application of EU law becomes intertwined with the discussion on the jurisdictional limitations attached to questions relating to situations falling outside that scope.
Preliminary rulings and purely internal situations: a general rule?
When confronted with a question in a case where the facts are confined within a single member state, the Court has sometimes adopted different approaches, as highlighted by Advocate General Jääskinen in his Opinion in Sbariglia.Footnote 24 The Court has either given an answer on the merits (in the sense that the rules of EU law do not apply to purely internal situationsFootnote 25 or that the legislation at issue was not precluded by EU law)Footnote 26 ; has examined the issue from the point of view of jurisdictionFootnote 27 or admissibilityFootnote 28 ; or a mix of both.Footnote 29
In practical terms, the most common approach in recent times has been that the Court declines jurisdiction where it is obvious ‘that the provision of European Union law referred to the Court for interpretation [is] incapable of applying.’Footnote 30 Since free movement provisions do not apply to situations ‘confined in all respects within a single member State’,Footnote 31 it is therefore somehow logical that the possibilities for the Court to give an answer on the merits encounter limits in purely internal situations. However, the Court has often provided a response on the merits even in those situations where EU law was not per se applicable to the specific facts of the case, thereby making explicit the fact that a factually purely internal situation does not inextricably lead to a lack of jurisdiction of the Court. Indeed, the Court has traditionally examined and provided answers to a number of legal questions in situations where the cross-border element or the link with EU law was not given, but where the interpretation of an EU law rule was deemed to be useful because of the potential effects on cross-border situations, because national law had extended EU law rules to internal situations to avoid reverse discrimination, or because national law contained an explicit renvoi to an EU law regime or provision. These lines of case law can be labelled as ‘exceptions’ to the rule of lack of jurisdiction in purely internal situations and will be further examined below.
The exceptions
A first type of cases concerns questions posed with regard to internal situations where it may be possible that the national legal systems attach the same treatment to static and cross-border situations (the Guimont line).Footnote 32 Even though the facts of a given case may be wholly domestic, the Court considers it useful to provide an answer to the national court, bearing in mind a possible scenario in which national law requires that static nationals be granted the same rights that a national of another member state would derive from EU law in the same situation. Indeed, ‘[w]here national law prohibits reverse discrimination, a national court will, after all, need an interpretation of the claims that nationals of other Member States are entitled to assert under Community law if it is to be able to determine whether the case before it involves reverse discrimination’.Footnote 33
A second line of cases (the Venturini line),Footnote 34 which often appears in close connection with the situation previously described,Footnote 35 concerns questions whose answers, even though posed in an internal context, bear potential consequences for cross-border situations. The Court therefore confirms jurisdiction where it is ‘not inconceivable’ that nationals or companies from other member states could be interested in making use of those freedoms in the territory of the member state concerned, and that the national legislation at issue, even if applicable without distinction to nationals and free movers, was capable of producing effects not confined to a member state.Footnote 36
Third, the so-called Dzodzi line of cases concerns the ‘indirect’ application of EU law through the mediation of national legislation.Footnote 37 It relates to situations where, even though the facts lie outside the direct scope of EU law, national legislation refers to EU law. This jurisprudential line is not confined to fundamental freedoms, but is transversally applicable where an EU law regime or provision becomes the object of a renvoi by national law. In the words of Advocate General Jacobs in Leur-Bloem, an EU ‘rule is borrowed by a Member State and transposed to a non-Community context’.Footnote 38 Even though this category is broader, it may also overlap with the ‘Guimont line’, since it is based on the logic of cross-reference between the national and the EU legal orders.Footnote 39
The most controversial of the above-mentioned exceptions, probably because of the potential width of its application, is the Dzodzi line. Indeed, the fields in which that ‘exception’ has been applied are very varied, including national references, for rather technical purposes, to elements of customs union law,Footnote 40 private law agreements,Footnote 41 rules and criteria of EU competition law,Footnote 42 or more generally to rules or regimes emanating from EU acts of secondary law and the extension of their application to situations that are, in principle, outside their materialFootnote 43 or temporalFootnote 44 scope of application. In those cases, the justification for the Court giving a preliminary ruling is based on the ‘interest of the European Union that, in order to forestall future differences of interpretation, provisions or concepts taken from European Union law should be interpreted uniformly, irrespective of the circumstances in which they are to apply.’Footnote 45
The judgment in Ullens de Schotten: a consolidation of the case law or a new approach?
The case law described above has not met with universal acclaim. The weak points of and dangers inherent to the various ‘exceptions’ whereby the Court of Justice proceeds to give an answer to questions concerning purely internal facts have in past repeatedly been raised by Advocates General.Footnote 46 The Court has, however, maintained its jurisprudential approach, even if it has progressively given signs that reveal a stricter approach to the requirements that need to be met in order to trigger those exceptional instances of jurisdiction for preliminary rulings.
Indeed, originally, application of the above-mentioned exceptions had been rather lenient. The Court used to give a generic indication of the existence of such a possibility for giving equal treatment, or of a cross-border impact (or potential interest by actors beyond the state border). However, the jurisdictional approach has become progressively stricter, explicitly identifying the elements that offer a clearer indication that the same treatment was indeed required,Footnote 47 and rejecting the application of the ‘exception’ when there are elements indicating that such is not the case.Footnote 48 Moreover, the Court started to explicitly reject taking the initiative in elucidating the potential obligations under national law when it was not apparent from the order for reference that the national court was actually under such an obligation to grant equal treatment.Footnote 49 The limits of the Dzodzi approach were also outlined by the Court when it required a ‘direct and unconditional renvoi’ to EU law provisions.Footnote 50 Despite the variable application of those limits in the past, the evolution of the case law consolidated a progressively stricter trend to carefully ascertain the content of the order for reference in order to establish whether there were sufficiently precise indications enabling the identification of such a reference to EU law,Footnote 51 the Court not being satisfied with any explanation by the national court.
The judgment of the Grand Chamber in Ullens de Schooten follows that trend and could even be described as its culmination. The case concerned a long and complex dispute with its origins in the criminal proceedings against, and conviction of, Mr Ullens de Schooten for concealing the illegal operation of a clinical laboratory, in contravention of national law. Mr Ullens de Schooten argued that the rule of national lawFootnote 52 which he was accused of having violated was not compatible with EU law. However, that argument was dismissed in several instances of national procedure without a preliminary question ever being asked.
The Court of Justice had declared several years earlier that the national rule at issue was not precluded by the freedom of establishment since it was not contrary to the principle of non-discrimination.Footnote 53 However, that was before the case law of the Court considered non-discriminatory obstacles to be contrary to the fundamental freedoms.Footnote 54 Years later, in 2002, and in line with that evolution, the Commission issued a reasoned opinion against Belgium considering the provision at issue to be contrary to Article 43 EC (on the freedom of establishment). Since the national provision was subsequently amended, the Commission took no further action. The Belgian Constitutional Court held moreover that the provision at issue was in compliance with the Belgian Constitution. In addition to all this, the European Court of Human Rights found that there had been no violation of Article 6(1) of the Convention in the case of Mr Ullens de Schooten.Footnote 55 Having exhausted those other jurisdictional options, Mr Ullens de Schooten initiated a procedure for damages against the Belgian State, in the course of which the Court of Appeal sent a preliminary reference to the Court of Justice.
In its judgment in Ullens de Schooten, the Court of Justice only addresses the second question posed by the referring court, concerning the implications of the concept of ‘purely internal situations’ in proceedings for damages caused by an alleged infringement of EU law.Footnote 56 This question is rather peculiar. The referring court does not ask about the interpretation of EU free movement rules in the context of freedom of establishment in a purely internal situation,Footnote 57 but raises a question indirectly related to that freedom: the possibility to rely on the EU principle of non-contractual State liability for damages caused to individuals for alleged breaches of EU (free movement) law (‘the EU principle of state liability’) in an internal situation.
This question addresses the applicability of an EU principle and hence leads inevitably to an affirmation of jurisdiction:Footnote 58 it is a question on the scope of EU law, which falls squarely within the interpretative jurisdiction of the Court of Justice. Therewith, the Court does not only confirm the broad nature of its jurisdiction in preliminary ruling procedures in internal situations; it underscores that the purely internal nature of a given situation does not per se solve the jurisdictional question, which can only rely on the relevance of the question asked with regard to the rule at issue: it is not so much the factual nature of a ‘purely internal situation’ that determines jurisdiction, but the legal implications of the preliminary question.
In its answer, the Court recalls its established case law, according to which, in order to trigger the EU principle of State liability, three conditions need to be met, the first of which being that the infringed rule of EU law should be intended to confer rights on the individual harmed. The decisive question is therefore ‘whether an individual in a situation such as that of Mr Ullens de Schooten derives rights from the relevant provisions of the FEU Treaty’.Footnote 59
In order to answer that question, the Court must examine the EU provisions at issue: the Treaty provisions on freedom of establishment. Those provisions do not, however, apply in internal situations.Footnote 60 The judgment confirms that the situation at issue in the main proceedings is one where all the elements are confined within a single member state.Footnote 61
The Court could have stopped here: in such an internal situation, an individual does not derive rights from EU law. However, in a subsequent step of its reasoning, the Court acknowledges its own practice regarding jurisdiction in preliminary rulings concerning purely internal situations, taking this opportunity to proceed to a long-awaited clarification and systematisation of its previous case law on the exceptional situations where jurisdiction in preliminary ruling proceedings is guaranteed even in the face of a purely internal situation. The Court lists the three traditional lines of case law outlined above,Footnote 62 and makes explicit the existence of a fourth (the Libert situation),Footnote 63 concerning preliminary rulings in proceedings for the annulment of provisions which apply not only to its own nationals, but also to those of other member states.Footnote 64
The most important element of the judgment is probably that, after enumerating and describing those ‘exceptions’, the Court proceeds to clarify what the role of national courts is: the Court cannot consider that its answer is necessary to enable the national jurisdiction to pass judgment if that court does not indicate ‘something other than that the national legislation in question applies without distinction to nationals of the Member State concerned and those of other Member States’.Footnote 65 The order for reference itself must contain ‘the specific factors that allow a link to be established between the subject or circumstances of a dispute, confined in all respects within a single Member State, and Article 49, 56 or 63 TFEU.’Footnote 66
This point of the reasoning encapsulates two rather important developments already foreshadowed in previous case law. First, it is not enough to abstractly indicate that a rule might exist which is applicable without distinction: more specific legal or factual information needs to be provided. Second, the order for reference is the decisive element; it must establish those elements, without the need for a request for clarification or for recourse to the frequently contradictory observations of the parties. Moreover, with this statement, the Court underscores the importance of Article 94 of the Rules of Procedure, which states the conditions for the admissibility of preliminary rulings, and assigns the national court the responsibility of identifying and explaining the connecting factor that justifies the need for a preliminary ruling in purely internal disputes.Footnote 67
Against that background, the Court concludes that the order for reference in Ullens de Schooten does not fulfil those requirements. It neither shows that national law requires that Belgian nationals be granted the same treatment as free movers nor that EU provisions have been made applicable by national law.Footnote 68 In consequence, the Court answers – in the negative – the question of whether Mr Ullens de Schooten derives rights from EU law so as to fulfil the requirements of the EU principle of state liability. Since the circumstances of the dispute in the main proceedings do not display any connecting factor to EU law, those provisions ‘are not capable of conferring rights on Mr Ullens de Schooten, and EU law cannot therefore give rise to non-contractual liability of the Member State concerned’.Footnote 69
The systematisation effort and clarification provided by this judgment is to be welcomed. It lists all the exceptions as a typology of instances where it is not the factual situation per se that determines jurisdiction, but the relationship between national proceedings, the nature of the question, and its connection with a rule of EU law. It moreover emphasises the role of national courts and clarifies the requirements to be fulfilled in a way that brings a degree of unity to the previously polarised scenario of differing but often overlapping exceptions. It gives greater visibility to and underlines the importance of Article 94 of the Rules of Procedure as the guiding provision ensuring the success of the system of cooperation established by the preliminary ruling procedure.
However, the concrete answer to the case at issue raises new follow-up questions. Notably, regarding the particular case at hand, one may wonder, supposing the order for reference had contained the abovementioned elements allowing one or more of the ‘exceptions’ to apply, whether that would have amounted to a ‘right’ conferred under EU law sufficient to trigger the EU principle of state liability. Furthermore, the systematisation of the four ‘exceptions’ makes explicit the need to tackle further connected issues. Are all of the ‘exceptions’ systematised in Ullens de Schooten equivalent and subject to the same requirements concerning the elements to be provided by the national court? Do all those ‘exceptions’ equally concern situations which are ‘truly’ purely internal? Would the preliminary rulings of the Court issued with regard to all those different situations produce the same effects? Those questions unveil some of the difficulties and challenges remaining with regard to the normative and jurisdictional consequences attached to the notion of purely internal situations, which will be discussed in the following section.
Purely internal situations in perspective: shortcomings of an outdated notion
Conceptual problems
It is by now undisputed that the conceptual clarity that the notion of ‘purely internal situations’ was deemed to convey in the early stages of EU integration has faded away to a great extent due to the constitutional evolution of EU law. That concept has proven insufficient to provide, on its own, for a solid framework of reference enabling the accurate assessment of either the substantive scope of application of EU law or the jurisdiction of the Court. In the traditional realm of the fundamental freedoms, the evolution of law and case law already renders the notion of purely internal situations an oversimplification. Indeed, it is very difficult to adopt a coherent normative approach to what really should be considered within or beyond the reach of free movement law on the sole basis of the concept of ‘purely internal situations’. Moreover, the powers of the EU have clearly and broadly surpassed the logic of free movement: there is an increasingly important body of primary and secondary law rules whose applicability does not in any way depend on cross-border elements. In those fields, the ‘purely internal rule’ is in theory not applicable but may in practice have a rather confusing influence.
Purely internal situations and free movement law
The application of the requirement of a ‘cross-border link’ as a trigger for the application of free movement law has become increasingly varied and complex. In this context, all the elements present in the formula ‘purely-internal-situation’ present important conceptual challenges.
It can be pointed out from the outset that the notion ‘internal’ has become more of a rough approximation than an accurate descriptive term. As outlined above, the scope of the fundamental freedoms has been detached from physical movement or tangible cross-border elements. The decisive elements triggering the application of the fundamental freedoms have progressively reached the realm of ‘potential’ effect. Aside from clear-cut cases where a more traditional exercise of free movement is clearly present, the notion ‘internal’ has lost much of its conceptual force to serve as a precise depiction of the negative scope of application of EU law. The rigid and static ‘territorial’ or ‘geographical’ connotations of the purely internal rule do not correctly grasp the elements of ‘potentiality’ and exercise of the fundamental freedoms not linked to movement, and have turned this term of art into a conceptual metaphor which conveys more confusion than clarification.
The complexity of the task of identifying situations covered by EU law, free movement rules in particular, also contrasts with the rotundness implied by the adverb ‘purely’. Indeed, since the exercise of defining the scope of application of the fundamental freedoms is often linked to the potential of a given measure, the question becomes one of defining the intensity of the connection or remoteness, which is necessarily a matter of nuanced interpretation. The establishment of absolute black and white criteria is extremely difficult; ‘affectation’ is necessarily framed in a scale where a number of intermediate points are likely to exist, each giving rise different outcomes. Taking that nuanced approach, some factual situations may be caught within the scope of EU law whereas some other discretely diverging situations may not. An argument can often be made identifying a potential (although remote) connection. In such a nuanced scenario, it is by no means accurate to speak of ‘pure’ internal character as an intrinsic or clear-cut feature defining a given situation. This makes it particularly difficult to draw a dividing line between situations where there exists a potential connector with EU free movement rules resulting in a situation covered by EU law, and the Venturini line of cases.Footnote 70 Therefore, the absolute terms ‘purely’ and ‘wholly’ compromise the perception of the consistency in the application of the rule. Indeed, as put by Nic Shuibhne, ‘how can we ensure that the exclusionary application of a purely internal rule in some cases is not arbitrary, given that the free movement framework also accepts a potential impact on movement as a legitimate factor for the purposes of connecting a situation to EU law?’Footnote 71
The ‘purely’ internal character also contrasts with the relative and differentiated approach towards the rule in the context of the different fundamental freedoms.Footnote 72 Indeed, the different freedoms do not always follow the same principles so that, from a conceptual point of view, the cross-border nature of a situation is difficult to assess in a coherent manner. Some aspects of the freedoms may be peculiar to each of them, as made evident by the case law of the Court, notably in the field of free movement of goods.Footnote 73 In this complex scenario, the concept of purely internal situations is again insufficient to explain the different approaches towards free movement of goods when compared with the other fundamental freedoms. These diversified approaches, when measured against the threshold of the purely internal rule, produce an impression of inconsistency. They are better explained by the diverse nature of the functioning and practical implications of the particular provisions and freedoms at issue than by the mere fact of having or not having a clear or ‘pure’ cross-border nature.
Finally, if the elements ‘purely’ and ‘internal’ are confusing, the most problematic element is that of situation. By referring to a situation, the formula emphasises the relevance of the factual elements at issue in a given case as decisive in defining the scope of application of EU law. Through this ‘situational’ characterisation, the formula seems to adopt a ‘geographical approach’ to the connecting factor to the scope of EU law.Footnote 74 However, the Court often looks at the impact of national provisions and answers a question by looking at the (potential) impact of a rule. The shift from factual (geographical) elements to legal ones underlines the nature of rules as a trigger for the applicability of free movement law.Footnote 75 In consequence, the notion of ‘purely internal situation’ is once more unsuitable for tackling the more complex issue of the connection of a given factual setup with a national rule, and does not provide clarification as to the key questions of who is entitled to invoke a given rule, and in which procedure.
All in all, even within the realm of the fundamental freedoms, the definition of ‘purely internal situations’ as those whose elements are confined within the territory of a member state has, to a great extent, been emptied of content and significance. This has been made apparent by different but related episodes in the case law of the Court where the factual and geographical content which underlies the purely internal situation concept has been undermined, demonstrating that what is relevant is not whether there is a cross-border connection to a given situation, but whether the EU rule at issue is relevant for the solution of a given case, taking into account the specific scope of the rule in question. Indeed, in the field of free movement of goods, the Court has expressly declared that Article 34 TFEU ‘cannot be considered inapplicable simply because all the facts of the specific case before the national court are confined to a single member state.’Footnote 76 Similarly, in the field of citizenship law, and despite a very cautious approach,Footnote 77 the case law has confirmed the conceptual dismantling of the notion of ‘purely internal situations’ by declaring, on the basis of Article 20 TFEU, that ‘the situation of a Union citizen who ... has not made use of the right of freedom of movement cannot, for that reason alone, be assimilated to a purely internal situation, that is to say, a situation which has no factor linking it with any of the situations governed by EU law.’Footnote 78
This last statement has provoked an important doctrinal debate, with many authors heralding triumph over the purely internal rule by citizenship of the Union.Footnote 79 However, the Ruiz Zambrano saga does not entail a departure from that notion, nor does it carve out any other jurisdictional exception to the limits of preliminary rulings related to purely internal situations. It merely clarifies the scope of the status of EU citizenship and the rights attached thereto which, despite being deeply entrenched in the free movement acquis, are neither always nor per se dependent on cross-border connections. That line of case law paradigmatically foreshadows the limitations and confusing potential of the ‘purely internal situation’ concept: the Court acknowledges that factual situations with no cross-border elements are not purely internal (even in a free movement related context) redefining purely internal situations as those with ‘no factor linking it with any of the situations governed by EU law’. In consequence, that notion appears to be nothing more than a rather simplified approximation of the more complex debate on the scope of EU law in the realm of free movement law.
Beyond free movement
The reference to the ‘purely internal rule’ may still be made to certain avail with regard to those areas or instruments of EU law where a cross-border element is required (e.g. in judicial cooperation and criminal cooperation related to mutual recognition).Footnote 80 However, the evolution of the scope of EU law and the depth of legal integration has progressively overcome the predominance of free-movement-based law. The number of areas of EU law where a cross-border connection is not required has become increasingly broader (e.g. environmental policy, social policy, consumer protection, asylum and migration law or procedural criminal law).Footnote 81
It might seem obvious that the purely internal rule applied to free movement has to be ‘distinguished from preliminary rulings concerning the interpretation of measures of secondary Union law, which need not have an actual link with free movement’.Footnote 82 Nonetheless, the paramount place occupied by free movement in EU law has given great amplification to the notion of purely internal situations. The Court refers to the concept of ‘purely internal situations’ in a broader context, even if only as an analogical reference to the lack of applicability of an EU law rule (and often, with regard to the Dzodzi line of case law).Footnote 83 By symbiosis or analogical use, the term ‘purely internal situations’ risks migrating to other areas where no cross-border link is required (or where its necessity is up for debate), as demonstrated by its rather usual appearance in the submissions of parties and Member States in cases unrelated to free movement.
In this context, the concept of ‘purely internal situations’ reveals certain intrinsic shortcomings; it fails to articulate proper legal reasoning regarding the scope of application of harmonisation rules. In particular, it more often obscures than clarifies the legal analysis when it comes to assessing the scope of EU law rules connected with the philosophy of free movement but conceived using the rationale of harmonisation. That is the case, for example, of public procurement law or data protection law where cross-border dynamics are already embedded in the self-defined scope of application as determined by secondary law.Footnote 84
From those examples, it already becomes apparent that the divide between positive (harmonisation) and negative (free movement) integration is not as clear-cut as it may seem for the purposes of the operability of the purely internal rule. This is the case, in particular, when secondary law develops Treaty articles on the fundamental freedoms which, on their own, would be subject to the purely internal rule. The most paradigmatic example of the difficulty of application of the ‘purely internal rule’ in a free movement related context is the Services Directive.Footnote 85 The discussion on the possibility of relying on it even in internal situations is linked in particular to the fact that its Chapter III, related to establishment, does not contain an explicit requirement demanding a cross-border connection, with many voices interpreting it as being applicable to purely internal situations.Footnote 86 As a result, the purely internal rule does not seem to have much value in the harmonisation context and adds an unnecessary element of uncertainty in connection with the normative development of the fundamental freedoms through secondary law.
In a nutshell: from a conceptual point of view, if the notion of ‘purely internal situations’ has become tantamount to finding that a situation is not regulated by EU law, one could wonder whether it would not be better to reverse the trend and use the more basic but precise formulation ‘outside the scope of EU law’. Such a formula brings us back in line with the terminology generally used with regard to the limits of EU law. In this regard, the task of determining whether a situation falls within the scope of EU law constitutes an intricate endeavour which can only be undertaken through careful consideration of the nature, content, purpose and context of a provision or instrument, as explicitly shown by the very complex jurisprudential development of the determination of the scope of application of EU fundamental rights by reference to the scope of application of EU law.Footnote 87
Jurisdictional problems
It may come as no surprise that the conceptual difficulties discussed above have seeped into the jurisdictional sphere. First, the notion of ‘purely internal situations’ leads to uncertainty with regard to the limits of the relevance of questions to and the jurisdiction of the Court of Justice. Second, important difficulties arise when it comes to assessing the effects of preliminary rulings in cases with a factual background labelled as a ‘purely internal situation’.
Jurisdiction, admissibility and the role of national courts
Once it has been determined that the facts of the case are wholly situated within the territory of a member state (with the effect that a specific provision of EU law is not per se applicable to the facts), this does not mean that the Court lacks jurisdiction. The ‘exceptions’ referred to in the second section of this article, whereby the Court gives an answer on the substance in such situations, demonstrate that the jurisdiction of the Court does not equate to the scope of application of EU law. Indeed, whereas the question of the scope of application of EU law concentrates on whether a situation/national rule is covered by EU law, the question of the jurisdiction of the Court looks, principally, at whether the requirements of Article 267 TFUE have been fulfilled.Footnote 88
Article 267 TFEU describes a broad scope of jurisdiction encompassing the interpretation of the Treaties and the validity and interpretation of secondary law. By focusing on merely that point, the interpretative powers of the Court risk going far beyond the limits of the broader system of allocation of competences in the EU and could lead to rather unsatisfactory outcomes in terms of clarity and the efficient use of judicial resources. Therefore, the very broad interpretative powers of the Court are narrowed by reference to the national jurisdictional reality embedded in Article 267 TFEU: the question must have been raised before a court or tribunal of a member state, and that jurisdiction must consider its answer to be crucial for deciding whether it can pass judgment.Footnote 89 Furthermore, the rules of admissibility contained in Article 94 of the Rules of Procedure play a paramount role in further framing the approach to purely internal situations, since they require that the request by the national court describes the facts and legal context so as to enable the Court to give a ruling. The admissibility requirements therefore ensure a real link to a case, and not merely a hypothetical connection.
On this basis, the case law of the Court has consistently underscored that neither the wording of Article 267 TFEU nor the aim of the preliminary ruling procedure indicates that the Treaty makers intended to exclude from the jurisdiction of the Court requests concerning EU law provisions where national law refers to that EU law provision ‘in order to determine the rules applicable to a situation which is purely internal.’Footnote 90 Indeed, the case law has emphasised that it is the relevance of the question for the national proceedings which constitutes the decisive element. The Court has explained, specifically in the Dzodzi line of cases, that the underlying logic of this broader jurisdictional approach is rooted in the spirit of cooperation with national jurisdictions and in the presumption of relevance of the preliminary questions.
In this context, and leaving aside its broader constitutional implications, the issue of jurisdiction in the framework of purely internal situations can be boiled down to a question of relevance: if the facts are not governed by EU law, the relevance of the question can be very plausibly be doubted.Footnote 91 Only in the exceptional circumstances identified by Court of Justice can such preliminary references still be regarded as relevant.
The above shows that cases concerning situations that are factually ‘purely internal’ cannot be approached by abstracting from the specific question and type of procedure at issue in the main proceedings. Those elements are essential for enabling the Court to justify giving an answer in situations which would prima facie concern facts falling outside the scope of EU law. First, as regards the object of the referral, the substantive content of the specific question posed is decisive for determining jurisdiction: often, the question is of a ‘meta’ nature, involving the scope of EU law itself or the applicability of an EU rule. The interpretative powers of the Court include policing the borders of EU powers so as to determine applicability; what is or is not internal is consubstantial to its task. The appreciation of whether a situation lies within the scope of EU law appertains to the merits and is therefore admissible (as was the case e.g. in Ullens de Schooten).Footnote 92
Second, assessment of the ‘relevance’ of the answer given by the Court for the case at hand very much depends on the nature of the main proceedings. When national proceedings are about abstract control (for example, in national annulment procedures), the factual framework, or the fact that the person at the origin of the case is a national with no cross-border links, becomes less decisive. Indeed, the result of the case will have effects erga omnes,Footnote 93 i.e. for both internal and cross-border situations (and most importantly, abstract arguments concerning the validity of the rule – either internal or cross-border in nature – may be taken into account by the national judge).Footnote 94 The relevance of the nature of national proceedings has been reinforced by the judgment in Ullens de Schooten, both through the identification of a specific exception related to annulment procedures where the effects are felt equally in internal and cross-border situations (the Libert exception) and through the clear dismissal of the argument based on the ‘paradoxical’ comparison with infringement proceedings.Footnote 95
Against this background, one relevant reflection inspired by the judgment in Ullens de Schooten is precisely the need to reinforce the visibility and importance of elements such as the object of the question and the relevance of national proceedings. Again, those rather important elements are independent from the qualification of facts as a ‘purely internal situation’, which becomes more of a red herring.
This debate also bears relevance when considered in light of the reinforced responsibility of national courts for providing an accurate factual and legal framework. Indeed, after several cases already pointing in that direction, it can be concluded that the judgment in Ullens de Schooten constitutes the consolidation of a trend, strongly advocated for by certain Advocates General,Footnote 96 leading to a more exigent approach towards situations that factually appear unconnected with the operation of EU law. It would indeed appear that this case has to a degree brought about a reversal of the presumption of relevance of the preliminary questions in those exceptional cases.
Despite those clarifications and advances, the judgment in Ullens de Schooten also makes it more apparent that certain important questions still remain unanswered. There is a need to further elaborate on the level of scrutiny that the Court must deploy with regard to the content of the order for reference where a national court struggles to describe a potential cross-border link or the consequences of a renvoi. It is indeed necessary to examine whether the requirements for accepting jurisdiction are equally demanding with regard to the different types of ‘exceptional’ situation. In this regard, some level of differentiation may be justified. Indeed, it should be kept in mind that, whereas in the Venturini/Libert lines of cases the assessment of a potential cross-border impact is a task for which the Court may be relatively well equipped, Guimont/Dzodzi cases pose important challenges of interpretation of national law when it comes to identifying the elements that ensure relevance and necessity of an answer in complex national legal scenarios.Footnote 97 This is all the more so in the event that the presumption of relevance of preliminary questions is deprived of its strength.
In this regard, the judgment in Ullens de Schooten gives the impression of unified and consistent consideration when it enumerates and systematically describes the four exceptional situations where the Court offers an interpretation of EU law even though it is, of its own force, not applicable to the facts and circumstances. However, the concrete implications of that analysis cannot be ascertained for that specific judgment. Indeed, in that case, the decisive element is not so much the lack of elements that justify triggering the ‘exceptions’ but the fact that the EU free movement rules invoked are not intended to protect those who are not making actual use of those freedoms; therefore, they cannot confer an individual right on Mr Ullens de Schooten that would give rise to state liability.Footnote 98 This fact probably explains why the Court did not examine whether the requirements of the Venturini exception had been met, even though that exception would seem to be the most relevant in the factual context concerned.Footnote 99
Effects of preliminary rulings in purely internal situations
Bearing in mind that it is the ‘relevance’ of the preliminary question that to a great extent justifies the jurisdiction to provide a material answer, the normative effects of that answer then become a central issue.
The judgments of the Court of Justice in preliminary ruling procedures are ‘binding on the national court, as regards the interpretation or the validity of the acts of the European Union institutions in question, for the purposes of the decision to be given in the main proceedings.’Footnote 100 With this statement in mind, the risk of providing an answer in cases where the facts lie outside the scope of EU law have been noted by several Advocates General, mostly criticising the Dzodzi line of cases in that it could lead to merely consultative decisions, to the detriment of the obligatory effects of preliminary rulings.Footnote 101 Indeed, it cannot be ignored that, in those cases, the ‘normative’ power of the decisions of the Court is borrowed. It does not emanate from the sources of EU law but from the national legal system. The same considerations could be made with regard to the Guimont line of cases (reverse discrimination), e.g. an equality provision interpreted in such a way as to avoid unequal treatment may still be subject to different justification, comparability or proportionality approaches under national law.
However, the issue of the effect of decisions rendered in those cases is rarely addressed by the Court.Footnote 102 The Court limits itself to recalling the need for the national rule operating the renvoi to EU law to be bound by the response, precisely to undercut the danger of rendering its own jurisdiction purely advisory.Footnote 103 The need to identify an obligatory character in national law does not, however, mean that the source of such a binding nature can be found in EU law: the insistence on that element can rather be explained from the point of view of the relevance of the question and the necessity of the answer – which could very easily be put into doubt if national courts were explicitly allowed to depart from the judgment given by virtue of national law.
The issue of the effect of preliminary judgments also presents specific challenges in the ‘Venturini’ line of cases. It is not easy to draw a line between cases where free movement is actually applied, and where an answer is given in a ‘purely internal situation’ with justification found in the potential effect of a national rule.Footnote 104 In other words, there is a thin line that separates ‘exceptional’ cases where the Court gives an answer regarding a ‘true’ purely internal situation lying outside the scope of EU law from those where that situation has stopped being ‘internal’ so as to fully fall within the scope of EU law. In consequence, it may prove difficult to determine the basis and the effects of the Court’s answer; whether the answer of the Court concerning a national rule in a case where all the facts concern a member state is circumscribed in its obligatory effects to the potential cross-border effects, or whether it is generally applicable.Footnote 105
In this framework, the uncertainty about the normative power of EU law and the effects of preliminary rulings in cases concerning ‘purely internal situations’ is not resolved by the judgment in Ullens de Schooten. The national court wished to know whether the EU principle of state non-contractual liability for damages caused by breaches of EU law could apply if the damage caused by an alleged violation of EU free movement was circumscribed by a purely internal context. The Court’s response on the merits – the abovementioned EU principle is not applicable in such a situation – can be considered correct. However, the line of reasoning followed by the Court still raises still some doubt with regard to the issue of the effect of preliminary rulings in cases where the facts fall outside the scope of EU law.
Indeed, in order to determine whether a particular rule of EU law – the EU principle of non-contractual State liability – was applicable, the main issue to be resolved was whether the EU law rule whose violation was adduced as the basis for such liability (free movement rules) was intended to confer rights on those individuals.Footnote 106 The answer to that question may have stopped at the point where the Court confirmed that the particular provisions of the Treaty on the fundamental freedoms did not apply in a situation such as the one involving that issue. Indeed, if those provisions do not apply, they may not per se confer rights on individuals and cannot, as such, form the basis of EU law-based state liability. However, the subsequent thorough examination of the ‘exceptions’ concerning jurisdiction in purely internal situations, even if highly enlightening from a general systematic point of view, shifts the focus of the reasoning in the particular case from the material consequences of having a situation governed by EU law to the issue of the jurisdiction of the Court to provide an answer.
The Court states, after examining those exceptions, that a ‘connecting factor’ is not given in the present case,Footnote 107 and from that element it derives its conclusion on the merits.Footnote 108 This leaves a somewhat problematic impression. It could indeed be deduced, by this reasoning, that by application of the jurisdictional exceptions to a lack of jurisdiction with regard to purely internal situations, the Court is entitled to give an answer that could also serve as a substantive foundation for a subjective right.
Indeed, one may wonder whether, if a ‘connection’ that triggered one of the four jurisdictional exceptions had been properly established by the national court, the response would have been different. In the event that national law extended EU law treatment to static citizens; in the event of a ‘renvoi’; if it appeared certain that the rule could have a cross-border impact: would that mean that those EU law provisions could confer rights upon Mr Ullens de Schooten, thereby making the EU principle of state liability – together with its conditions as interpreted by the Court – applicable in a purely internal situation? Would national law not still be the source of rights (even in the presence of such a jurisdictional ‘connecting factor’) and therefore, would not the national law principles related to state liability be applicable? Does the presence of a ‘connecting factor’ for the purposes of establishing jurisdiction turn a purely internal situation into one covered by EU law, extending therefore to all the principles attached to its application (including, e.g. fundamental rights)?
Granted, the response to these questions is negative, as can be concluded from an attentive reading of paragraph 57 of the judgment, which establishes the decisive element: the EU free movement rules invoked cannot confer an individual right on Mr Ullens de Schooten in the given situation, and this precludes the possibility of finding state liability. However, that core element of the reasoning gets somehow diluted in light of the paramount role that the consideration of the four exceptions (which could not, seemingly, have any decisive impact on the solution of the case) occupies in the judgment.
Concluding remarks
The notion of purely internal situations was born as a useful concept which conveyed a powerful description of the limits of EU free movement law. It served as a catalyst to the scope of application of EU law and through a simple notion helped to easily grasp the relevance of EU law for a given factual setup. The concept may still be of certain avail with regard to those areas or instruments of EU law where there is a requirement for a cross-border element, as it may provide for an approach to the applicability of an EU rule where the scope of that rule is clearly governed, in a given situation, by a cross-border connection, and that link (either actual or potential) is clearly missing in a given case. However, the evolution of EU law in general and of free movement law in particular has rendered the concept somewhat obsolete, turning it into a rather rough and inaccurate approximation of the scope of EU law in the majority of cases, which do not present such clear-cut features.
Even in the realm of the fundamental freedoms, the notion of purely internal situations does not ensure clarification as to the question of determining the scope of application of EU law. The complexity and dynamism of free movement law leads to a progressively nuanced approach to the ‘connection’ with EU law, which makes it inaccurate to speak of ‘purely’ ‘internal’ ‘situations’. It is not clear whether the issue is triggered by the nature of a ‘rule’ or of a factual ‘situation’, whether its ‘internal’ character is more construed than real, or whether ‘purity’ can exist at all. Indeed, the ‘purely’ internal character of a situation evokes an idea of clarity and absoluteness which does not properly correspond to the reality of the assessment of the cross-border link across the different fundamental freedoms. The discourse becomes more complex when it tries to fit current developments into those concepts, and leads progressively to a further dichotomy between ‘true’ purely internal situations and ‘apparent’ purely internal situations, the divide between both being extremely blurry. Moreover, not only has the purely internal realm been reduced: when identified, it is not consistently applied with regard to the different fundamental freedoms. Finally, outside the field of the fundamental freedoms, that concept becomes an approximation which sometimes produces more confusion than clarity. All in all, the concept does not suffice to systematically serve as a basis for normative or jurisdictional consequences. As a result, the value of the concept of ‘purely internal situations’ has been reduced to being suitable, at most, for general use as a tentative metaphor or figure of speech.
In this framework, the approach of the Court of Justice to purely internal situations through the preliminary rulings procedure adds another layer of complexity. Indeed, due to the broad scope of preliminary ruling jurisdiction, and inspired by the purposes of judicial cooperation and uniform interpretation of EU law, the Court examines the merits in cases where the facts lie in principle outside the scope of EU law. In this context, the notion of ‘purely internal situations’ serves to articulate a set of exceptional instances where the Court provides substantive answers in such situations.
The recent judgment in Ullens de Schooten has systematised four lines of case law (adding a fourth – the Libert type – to the traditional Guimont, Dzodzi, Venturini trilogy) and has underlined the particularly relevant responsibilities of national jurisdiction in laying out the legal and factual framework allowing the Court to consider a request for a preliminary ruling. However, it still remains to be seen to what extent the identification of those four types of case can be kept consistent in terms of the requirements to be met and the scrutiny to be exercised by the Court. Indeed, the various exceptions cannot be justified by the same concerns; they each relate to different scenarios in which the connection with the normative power of EU law is very different. Moreover, the issue of the effect of preliminary rulings in those diverse situations becomes particularly problematic, and it remains far from clear whether it would be viable to adopt a uniform approach. As a result, it seems apparent that while the notion of ‘purely internal situations’ provides for a merely approximative point of departure, neither does it attach fixed jurisdictional implications. Rather, the decisive element is the relevance of the question in the specific factual and legal context which can be better approached by comprehensive consideration of the specific question at issue, the nature of the EU rule, the implications (and potential effects) of the national legal framework and, particularly, the nature of the national proceedings in which the question is posed.
