The above arguments should be criticized and evaluated having in mind the scope of article 267 TFEU, the needs that this article serves but also the position of the community law in the hierarchy of laws of the member states. The examination of existing case law and the literature published on the particular issue have led to the followed assumption: member states may have the discretion to ask the ECJ for a preliminary ruling but this discretion is not absolute. in fact, this discretion refers to the choice of the phase of the case and the methods employed for submitting a referral to the ECJ – it does not reflect the freedom of the courts of a member state to completely avoid the ECJ when the interpretation of community law is required.The article 267 of TFEU sets the terms under which the national courts of member states can ask the ECJ for a preliminary ruling for cases that refer to the community law. The preliminary ruling can be given by the ECJ specifically in the following two cases: ‘(a) the interpretation of the Treaties. (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union’ (article 267 TFEU). The national courts have the discretion to make a referral to the ECJ when the terms of the Article 267 TFEU are met. however, this discretion has limits: the national courts cannot avoid the preliminary ruling of ECJ in the context of 267 TFEU, a view that is supported by the existing case law and literature – as analyzed in the next section. It must be noted that the ECJ must respond with no delay when such a ruling is asked by the national courts of member states – this obligation of the ECJ is clearly stated in the 267 TFEU in this article’s last paragraph which was added by the Lisbon Treaty (Great Britain, Parliament, 2008, p.77). the above provision for the response of the ECJ ‘with the minimum of delay’ (Piris, 2010, p.232) refers to cases where a person is in custody.
Article 267 TFEU