C-767/23 Remling: the ECJ tightens the duty to justify non-referral
On 24 March 2026, the Court of Justice of the European Union (the “ECJ” or the “Court”) delivered its judgment in C-767/23, Remling, raising the bar for national courts of last instance when refusing to refer questions for a preliminary ruling.
The Court makes clear that such refusals can no longer be justified in broad or formulaic terms. Instead, national courts must provide specific and concrete reasons explaining why, in the circumstances of the case, no reference to the Court is required under EU law. This duty applies even where national procedural law permits summary reasoning. At the same time, the judgment reaffirms the central role of the preliminary ruling procedure in the EU legal order, while stopping short of recognising a standalone right for parties to obtain a reference. Rather, the system remains a structured judicial dialogue between national courts and the Court.
This blog post explores the Court’s reasoning in Remling and considers its implications for Swedish law and judicial practice.
Background to the case
The case concerned a Moroccan citizen, A.M., whose application for an EU-wide residence permit was rejected by the State Secretary in the Netherlands on the basis that A.M. already held a residence permit in Spain. After unsuccessful complaints and actions before a Dutch District Court, A.M. appealed to the Netherlands Council of State (the court of last instance), requesting that the matter should be referred to the ECJ under Article 267 TFEU, which allows, and in certain circumstances requires, national courts to seek authoritative guidance from the Court on the interpretation of EU law.
The Council of State considered the answer clear from existing ECJ case-law, and therefore did not consider itself required to make a reference. Under Article 91(2) of the Netherlands’ Law on foreign nationals, the Council of State may reason its decision in a summary manner. The intention behind the provision was to reduce the length of court proceedings and to allow that court to devote more time to important cases. However, referring to C-561/19, Consorzio Italian Management and Catania Multiservizi, the Council of State noted that a court relieved of the obligation to refer a question on the interpretation of EU law to the ECJ must state reasons for such a decision. It therefore decided to stay proceedings and to ask the ECJ whether national legislation allowing for summary reasoning in such circumstances is compatible with EU law, in particular Article 267 TFEU read in the light of Article 47 of the Charter of Fundamental Rights of the European Union (the “Charter”), providing a right to a fair trial.
ECJ’s consideration of the referred question
First, the Court recalled that national courts or tribunals of last instance are, in principle, required to refer questions concerning the interpretation of EU law to the ECJ. That obligation does not apply only in limited circumstances: where the question is not relevant to the outcome of the case, where the Court has already interpreted the provision at issue, or where the correct interpretation of EU law is so clear as to leave no reasonable doubt (acte clair).
Where one of these exceptions apply, the Court emphasised that the system established by Article 267 TFEU, read in light of the second paragraph of Article 47 of the Charter, requires the national court to demonstrate that the question of EU law raised indeed falls within that exception.
The Court then addressed the relevance of Article 6(1) ECHR. The European Court of Human Rights has accepted that courts may dismiss appeals with summary reasoning, including in cases involving requests for a preliminary ruling. However, its case law primarily concerns situations where a party has explicitly requested such a reference. In the absence of both a request and explicit reasoning, a decision not to refer does not in itself infringe the right to a fair trial. Nor does the ECHR guarantee a right for parties to have a question referred to the ECJ.
By contrast, the ECJ emphasised that EU law imposes stricter requirements. Courts of last instance must state reasons when declining to refer a question of EU law, regardless of whether the issue is raised by a party or by the court of its own motion, including where the court is required or empowered to raise points of law based on binding rules. At the same time, the preliminary ruling system remains a judicial dialogue, and the decision whether to refer ultimately rests with the national court.
Where national law allows for summary reasoning, the national court must still state clearly and specifically why no reference is required in the particular case. This obligation may be met by endorsing the reasoning of a lower court, provided that the lower court has identified the relevant ground. If not, the court of last instance must provide its own reasoning tailored to the case.
Only in limited situations may reasoning be truly concise; namely, where the question is irrelevant to the outcome of the dispute or has already been answered by the ECJ.
Requests for preliminary rulings in a Swedish context
Although Sweden has been a Member State of the EU for over 30 years, its courts have attracted sustained criticism for their tendency to avoid referring questions to the ECJ. In Sweden, requests from one or both parties have been frequently denied by Swedish civil and administrative courts. On two occasions in the past, the Supreme Court even ruled that such denials are permissible. Generally, Swedish courts provide extremely short and terse reasons for their decisions to deny requests for preliminary rulings. It has been argued that such brief reasoning does not meet the requirements of Article 6 ECHR or Article 47 of the Charter.
Following an infringement procedure against Sweden initiated by the European Commission in 2004, an Act was introduced in 2006 requiring last instance courts in Sweden to state reasons for their denials. The new legislation did not, however, lead to any significant increase in the number of requests for preliminary rulings.
Not until 20 December 2022, in Case Ö 5978-21, AstraZeneca, did the Swedish Supreme Court for the first time set aside a ruling for failure to seek a preliminary reference. The Supreme Court acknowledged the obligation for last instance Swedish courts to request preliminary rulings, provided that the outcome is dependent on the interpretation of a provision of EU law. The Supreme Court declared that the failure to request a preliminary ruling constituted a gross procedural error and remanded the case to the Patent and Market Court of Appeal (which was the court of last instance). Although the judgment was delivered in 2022, the number of preliminary references from Swedish courts still remains low. Please see our previous blog post on the AstraZeneca case here.
As for Remling, the Court’s ruling may encourage Swedish courts to provide more developed reasoning when declining to refer questions for preliminary rulings. Although the relevant legislation, introduced in 2006, requires courts to give reasons for such decisions, it does not explicitly require those reasons to be specific and concrete.
More broadly, Remling serves as a reminder of the fundamental importance of the obligation to refer. It may therefore prompt Swedish courts either to make references more readily or, at a minimum, to engage more carefully with whether such an obligation arises in a given case.
Concluding remarks
The Court’s ruling in Remling emphasises the fundamental role of the preliminary ruling procedure in the EU legal order. Perhaps most importantly, Remling serves as a useful reaffirmation that EU law obligations cannot be circumvented by procedural means. While some had hoped that the Court would elaborate further on whether there is a fundamental right under EU law for parties to have a case referred to the ECJ, Remling underscores that such rights and party participation in the dialogue between judges are limited. This is consistent with the nature of the preliminary reference procedure, which is designed as a tool for judicial cooperation.
As for the implications for Swedish law, the Court’s ruling may encourage courts of last instance to provide more developed reasoning when refusing to refer questions for preliminary rulings. While it may not lead to a significant increase in the number of references, the judgment underscores the importance of the preliminary ruling procedure. It may therefore prompt Swedish courts to engage more actively with the question of whether a reference is required, ultimately strengthening legal certainty in cases involving EU law.
This post is published only two weeks after the delivery of Remling, and its practical effects therefore remain to be seen. Delphi will continue to monitor the developments in this area.