The procedure for the prior involvement of the Court of Justice
Regard for autonomy of EU law requires that the CJEU must have had the chance to interpret and rule on an issue of EU law before it reaches the ECtHR. The real problem emerges with indirect actions concerning EU law brought in the courts of the member states, and it is possible that, in such a case, a national court might not refer to the CJEU for a preliminary ruling – in which case the CJEU would be denied the ability to provide authoritative guidance on the treaties. A solution to this problem was offered by Presidents Costa and Skouris in a joint communication, which suggested that, as part of the accession agreement, an internal procedure for indirect actions should be introduced, so that the CJEU should have a chance to make a ruling in such cases. This idea was adopted by the draft accession agreement (Article 3 (6)).
However, the ECJ found fault with the draft agreement’s terms, because, first, it did not reserve to the CJEU only (ie it did not exclude the ECtHR) the power to rule on whether the CJEU has already dealt with an issue, and, second, it did not permit the CJEU to rule on the interpretation, but only on the validity, of EU law.