Letter to European Commission re apparent failure of Amsterdam District Court to refer cases for a preliminary ruling in EAW cases

According to consistent case law, the District Court is under an obligation to refer cases to the Court of Justice in cases where the interpretation of EU law is not clear. Only when a similar matter has already been resolved by the Court of Justice or where the can be no doubt as to the correct interpretation of EU law, may the District Court refrain from referring the case to the Court of Justice (CILFIT-judgement; ECLI: EU:C:1982:335).

The authors are of the view, however, that the Amsterdam District Court rarely to never refers cases to the Court of Justice even when such a referral was clearly called for. Since neither the wanted person nor his or her lawyers can petition the Court of Justice directly this has lead to a de facto legal vacuum.

If the Commission establishes that the Amsterdam District Court indeed wrongfully refuses to refer cases to the Court of Justice, it may start infringement proceedings against the Netherlands. The first step in this regard is the Commission issuing a letter of formal notice (notice of default). Ultimately, the Commission can petition the Court of Justice to sanction the Netherlands for failing to comply with its obligations under the EU treaties. In such a case, the Court of Justice may impose fines and/or periodic penalty payments.

On 30 June 2015, 27 letters of formal notice (notice of default) were pending against the Netherlands, three of which concerned the Ministry of Security and Justice.