The scope ratione temporis of the interpretative rulings of the ECJ : should the temporal limitation still be a strict derogation from retroactive effects?

Abstract

This article investigates the European Court of Justice's practice of limiting the temporal effects of its interpretative preliminary rulings in EU law, focusing on two main aspects. First, it examines the rationale behind the ex tunc rule and the substantive and procedural conditions for limiting temporal effects. Second, it explores the major open issues in this regard, namely the Court's over-strict practice in applying those conditions and the old-fashioned rule-exception mindset. Three main arguments are put forward. First, it is suggested that Court's over strict practice has essentially nullified the possibility to meet the conditions set in its case law, departing from the spirit and the approach adopted in its earliest judgments and clashing with the rationale and purpose of the preliminary ruling procedure. Second, it is claimed that it is high time for the Court to relax its approach towards the exceptionality of the temporal limitation of interpretative preliminary rulings, and three proposals to proceed forward are offered. Third, it is argued that such a relaxation would better serve the interests of the cooperative federalism rationale underpinning the preliminary ruling procedure and would greatly match the Court's constitutional and federal function.