Information;Order — ECLI:EU:C:2025:866
Date: 2025-11-10
Language of the case: Polish
Court formation: Sixth Chamber
Procedure: Reference for a preliminary ruling
Origin: Poland

Summary C-137/25 – 1 
Case C-137/25 [Woluc] i 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
14 February 2025 
Referring court: 
Sąd Okręgowy w Warszawie (Poland) 
Date of the decision to refer: 
17 January 2025 
Party initiating the proceedings before the referring court: 
J.F. 
P.F. 
Defendant: 
Bank BPH S.A. 
  
Subject matter of the case in the main proceedings 
Action for payment resulting from the invalidity of a credit agreement containing 
unfair terms 
Subject matter and legal basis of the request 
Interpretation of EU law, in particular Articles 6(1) and 7(1) of Council Directive 
93/13/EEC; Article 267 TFEU and the principle of effectiveness as a restriction on 
the principle of procedural autonomy 
 
i The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-137/25 
 
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Questions referred 
1. Should the principle of effectiveness – as a restriction on the principle of 
procedural autonomy – and Articles 6(1) and 7(1) of Directive 93/13 in 
conjunction with recital 24 thereof be interpreted to mean that these provisions are 
contrary to an interpretation of national law (with respect to provisions such as 
Article 386(6) of the Kodeks postępowania cywilnego (Polish Code of Civil 
Procedure)) according to which a legal assessment made in the reasoning of a 
judgment by a court of second instance is binding both upon the court of first 
instance to which the case was referred back for re-examination and upon the 
court of second instance when re-examining the case (unless there is a change in 
the legal or factual circumstances or a different legal assessment is subsequently 
made in a resolution by the Sąd Najwyższy (Supreme Court, Poland)), and hence 
it would be necessary to follow the guidance provided by the court of second 
instance after the setting aside of the judgment even if this guidance, in the 
opinion of the court of first instance, was contrary to the Court of Justice’s 
interpretation of Directive 93/13, in circumstances where application of the legal 
assessment made by the court of second instance would render practically 
impossible the exercise of rights granted under EU law? 
2. In the event that Question 1 is answered in the affirmative, should the 
principle of effectiveness, as a restriction on the principle of procedural autonomy, 
and Article 267 TFEU be interpreted as meaning that a national court bound by a 
legal assessment which, in its opinion, renders practically impossible the exercise 
of rights granted under EU law, is obliged, before deciding not to apply this 
assessment, to carry out an additional verification step that would legitimise the 
decision to deviate from domestic procedural provisions, by referring a question to 
the Court [of Justice] of the European Union, for the purpose of avoiding 
arbitrariness and abuse of the powers resulting from the primacy of EU law? 
Provisions of Community law relied on 
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer 
contracts (‘Directive 93/13’): recital 24, Article 6(1), Article 7(1). 
Provisions of national law relied on 
Konstytucja Rzeczypospolitej Polskiej z dnia 2 kwietnia 1997 r. (Constitution of 
the Republic of Poland of 2 April 1997; Dz. U. of 1997, No 78, item 483, as 
amended): Article 176(1) 
Ustawa z dnia 17 listopada 1964 r. Kodeks postępowania cywilnego (Law of 
17 November 1964 establishing the Code of Civil Procedure; Dz. U. of 2024, item 
1568, as amended): Article 386(4) and (6). 
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Ustawa z dnia 23 kwietnia 1964 r. Kodeks cywilny (Law of 23 April 1964 
establishing the Civil Code; Dz. U. of 2024, item 1061, as amended): 
Article 385 1, Article 385 2 
Succinct presentation of the facts and procedure in the main proceedings 
1 The parties to the main proceedings are consumers who, in 2007, concluded a 
credit agreement in Polish zlotys, indexed to a foreign currency (Swiss francs 
(CHF)). The indexation involved converting the amount to be paid out on the 
basis of the buying rate of the currency as shown in the foreign currency exchange 
rate table of the defendant (the bank), and reconverting it after repayment on the 
basis of the selling rate as shown in this bank’s foreign currency exchange rate 
table. The balance of the loan debt was expressed in the foreign currency and 
calculated at the exchange rate applied to the loan’s release. The buying/selling 
rates for the mortgages granted by the bank, as applicable on the date of the 
transaction and in the currencies used in the offer, were used respectively for the 
settlement of loan drawdown/repayment transactions. Buying/selling rates were 
defined as the average Polish zloty exchange rates for the given currencies as 
published respectively in the table of average exchange rates of the Narodowy 
Bank Polski (National Bank of Poland; NBP), minus the buying margin or plus 
the selling margin. The Polish zloty exchange rates for the given currencies as 
published in the NBP’s table of average exchange rates on the relevant business 
day, corrected by the bank’s buying or selling margin, were used to calculate the 
buying/selling rates for mortgages granted by the bank. 
2 In the opinion of the applicants, the dispute originates from the indexation clauses 
in the credit agreement, which provided for the indexation of the principal to the 
CHF exchange rate, meaning that the instalments were calculated on the basis of 
an amount that was the equivalent value in Swiss francs of the loan amount in 
Polish zlotys (i.e. indexed to the Swiss franc), and which furthermore provided for 
these instalments to be converted from Swiss francs to Polish zlotys on the basis 
of the selling rate. They challenged the indexation mechanism as a whole, 
claiming that the agreement was invalid and moving that the bank should be 
ordered to return the sums wrongly paid. They cited Article 3851 of the Civil Code 
in this connection, referring to the unfairness of these terms of the credit 
agreement. In turn, the defendant took the view that the agreement was valid and, 
in particular, asserted that the only terms that could be examined with respect to 
their alleged unfairness were those relating to the bank’s margin applied on top of 
the NBP’s average rate, since the NBP’s rates were widely available and 
objective. 
3 In a judgment of 1 December 2021, the Sąd Okręgowy w Warszawie (Regional 
Court in Warsaw) found that the credit agreement was invalid as a whole, and that 
the disputed terms of this agreement relating to the principal performance by the 
parties were ambiguously worded and unreasonably prejudiced the interests of the 
consumers, who were not properly informed about the foreign exchange risk. As a 
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result, and having regard to the consumers’ statements to the effect that they were 
aware of the consequences of a finding that the agreement was invalid, the court 
found that the agreement concluded by the parties was invalid, and ordered the 
bank to pay the applicants an amount equivalent to the sum of the payments made 
by the borrowers in performance of the invalid credit agreement. In the reasoning 
of the judgment, the Sąd Okręgowy w Warszawie (Regional Court in Warsaw), 
while analysing the grounds for its finding that the terms were inadmissible under 
Article 3851 of the Civil Code and in the context of an interpretation of Directive 
93/13, cited the Court of Justice’s case-law, in particular its judgment in Case 
C-19/20, which was very similar to the present case in terms of subject matter (the 
terms of the agreement in Case C-19/20 were identical to those of the agreement 
concluded with the applicants). In that judgment, the Sąd Okręgowy w Warszawie 
(Regional Court in Warsaw) emphasised (while citing and endorsing the Court of 
Justice’s position in Case C-19/20) that the provisions of Directive 93/13 
precluded a term that had been found to be unfair from being maintained in part, 
with the elements which made it unfair removed, where that removal would be 
tantamount to revising the content of that term by altering its substance. The court 
of first instance found that the conditions to which the Court of Justice had 
referred in the judgment in Case C-19/20, and which allowed the removal of only 
part of a disputed term, were not met in the case at hand, since the term relating to 
the margin was not a contractual obligation distinct from the other contractual 
terms, capable of being the subject of an individual examination. 
4 In a judgment of 2 February 2023, the Sąd Apelacyjny (Court of Appeal) set aside 
the judgment by the Sąd Okręgowy w Warszawie (Regional Court in Warsaw) of 
1 December 2021 and referred it back to the latter for re-examination. In the 
reasoning of the judgment, the Sąd Apelacyjny (Court of Appeal) wholly 
disregarded the arguments put forward by the Sąd Okręgowy w Warszawie 
(Regional Court in Warsaw) citing the judgment in Case C-19/20, and instead 
asserted (among other things) that the Sąd Okręgowy w Warszawie (Regional 
Court in Warsaw) had wrongly found that the indexation terms of the credit 
agreement had unreasonably prejudiced the interests of the applicants, as 
consumers, to an extent that justified a finding that the entire agreement should be 
regarded as invalid. The Sąd Apelacyjny (Court of Appeal) carried out no analysis 
at all of the conditions applicable to assessing a term on the basis of the criteria 
referred to in the judgment in Case C-19/20. In the opinion of the Sąd Apelacyjny 
(Court of Appeal), the agreement concluded by the parties met in part the 
requirement that applied on the basis of the Court of Justice’s case-law regarding 
the interpretation of the provisions of Directive 93/13. In the opinion of the court 
of second instance, and contrary to the conclusions of the judgment in Case 
C-19/20, the remaining contractual terms could be maintained after removing the 
part of the indexation clause which differed (by an arbitrary buying or selling 
margin) from the NBP’s average exchange rate. The court of second instance 
ordered the referring court to find that the agreement was valid when re-
examining the case. 
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5 In the opinion of the referring court, the legal assessment made by the Sąd 
Apelacyjny (Court of Appeal), and which is binding upon the Sąd Okręgowy w 
Warszawie (Regional Court in Warsaw) pursuant to Article 386(6) of the Code of 
Civil Procedure because the case was referred back to the latter for re-
examination, is contrary to the Court of Justice’s interpretation of Directive 93/13, 
and in particular the arguments put forward in the judgment in Case C-19/20. 
Furthermore, in the opinion of the referring court, the Sąd Apelacyjny (Court of 
Appeal) also failed to consider another important piece of guidance resulting from 
the Court of Justice’s case-law, namely that the dissuasive effect of Directive 
93/13 should be taken into account. The Court of Justice has however noted on 
many occasions that Article 6(1) of Directive 93/13, read in conjunction with 
Article 7(1) of this Directive, seeks to attach a dissuasive effect to a finding of the 
presence of unfair terms in contracts between consumers and sellers or suppliers 
(for example in the judgment in Case C-520/21, ECLI:EU:C:2023:478). In the 
opinion of the referring court, applying the guidance of the court of second 
instance and maintaining the agreement after removing only part of the term, 
despite a clear statement by the consumers that they accepted the consequences of 
the entire agreement being found invalid, would nullify the dissuasive effect 
intended by the Directive. The Court of Justice has also drawn attention to the 
need to take into account the dissuasive effect of Directive 93/13 elsewhere, for 
example in its judgment in Case C-19/20, where it stated that Article 6(1) and 
Article 7(1) of Directive 93/13 should be interpreted as meaning that, first, they do 
not preclude the national court from removing only the unfair part of a term in a 
contract concluded between a seller or supplier and a consumer where the 
deterrent objective pursued by that Directive is ensured by national legislative 
provisions governing the use of that term, provided that that element consists of a 
separate contractual obligation, capable of being subject to an individual 
examination of its unfair nature, and second, those provisions preclude the 
referring court from removing only the unfair element of a term in a contract 
concluded between a seller or supplier and a consumer where such removal would 
amount to revising the content of that term by altering its substance, which it is for 
that court to determine. In its reasoning of the judgment of 1 December 2021, the 
court of first instance – unlike the Sąd Apelacyjny (Court of Appeal) – also 
referred to the fact that the dissuasive effect of Directive 93/13 applied as a 
criterion. 
6 According to past decisions by the Sąd Najwyższy (Supreme Court) and the 
ordinary courts, the reference in Article 386(6) of the Code of Civil Procedure to 
the fact that a legal assessment is binding on a court means (among other things) 
that the court of first instance is not permitted to make any assessments that 
contradict those set out previously by the court of second instance in its reasoning, 
and even that the court of first instance must refrain from any attempts whatsoever 
to undermine or challenge the legal assessments binding on it or any guidance as 
to further proceedings. Pursuant to Article 386 of the Code of Civil Procedure, the 
court is authorised to derogate from the principle whereby a legal assessment is 
binding in the event that there is a change in the legal circumstances or if there has 
since been a change in the factual circumstances upon which the court of appeal 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-137/25 
 
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based its previous legal assessment. The binding nature of a legal assessment 
made when setting aside a judgment by a court of first instance, and the resulting 
ban on legal assessments that are contrary to the appellate court’s position, is one 
of the foundations of civil proceedings, and any derogation from it must be 
founded in law (Sąd Apelacyjny w Szczecinie (Court of Appeal in Szczecin) in its 
judgment of 20 May 2021, I ACa 509/20; Sąd Najwyższy (Supreme Court) in its 
judgment of 13 December 1999, ICKN 175/99) 
The essential arguments of the parties in the main proceedings 
7 The applicants hold that the indexation terms in the credit agreement allow the 
bank to act in an arbitrary fashion and leave it free to set foreign currency 
exchange rates, as a result of which the bank unilaterally determined the balance 
of the loan expressed in a foreign currency and then used this amount as the basis 
for charging interest and determining instalment amounts. These terms are 
therefore inadmissible and not binding on the applicants. Furthermore, removal of 
the buying/selling margin from the disputed agreement would not make the terms 
more transparent, but would instead lead to the unenforceability of the agreement. 
The main subject matter of the agreement is indexation. In the applicants’ opinion, 
the agreement is incompatible with the nature of a lending institution, since it 
transfers to the bank an entitlement to specify the amount of credit used, and also 
contrary to the law, since it prevents borrowers from gaining knowledge of the 
exchange rate used as a basis for indexation or instalment repayments. In their 
opinion, the agreement also infringes the rules of social conduct, since it 
distributes the foreign exchange risk unequally. The agreement is therefore 
invalid. In the alternative, they note that it is possible to take the opposite view, 
namely that the agreement is enforceable on the basis of a loan amount specified 
in Polish zlotys using the LIBOR rate. 
8 In the opinion of the defendant (the bank), the agreement contested by the 
applicants is valid and does not contain unfair terms, and there are no grounds for 
a finding that the agreement is contrary to the nature of the legal relationship and 
the rules of social conduct given that the applicants were duly informed of the 
foreign exchange risk. In particular, the defendant has asserted that the only terms 
that can be examined with respect to their alleged unfairness are those relating to 
the bank’s margin applied on top of the NBP’s average rate, since the NBP’s rates 
are widely available and objective. The defendant has also pointed out that 
Section 17 of the credit agreement contains two separate and independent clauses 
that are capable of being subject to an individual examination, and that if the 
clause concerning the margin is removed, the remainder of the terms can continue 
to apply on their own. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
9 As regards the first question, the referring court asserts that application of the 
guidance provided by the court of second instance would render practically 
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impossible the exercise of the rights granted under EU law. It follows clearly from 
the Court of Justice’s case-law (for example the judgment in Case C-19/20) that 
removing only one element of the unfair term is inadmissible in accordance with 
Directive 93/13. The legal assessment made by the court of second instance, 
which was binding on the referring court pursuant to Article 386(6) of the Code of 
Civil Procedure, disregarded the Court of Justice’s aforecited case-law. The court 
of second instance directly acknowledged in the reasoning of its ruling that it was 
laying out a position that, ‘disregarded developments in the well-known case-law 
of the ordinary courts and the Sąd Najwyższy (Supreme Court), shaped to a large 
extent by the Court of Justice’s rulings pertaining to the interpretation of the 
provisions of Directive 93/13. A discussion of this case-law was omitted for the 
primary purpose of allowing the Sąd Apelacyjny (Court of Appeal) to present its 
own viewpoint against the backdrop of an established line of case-law.’ 
10 If the court of first instance, following the setting aside of its judgment, were to 
follow the literal meaning of Article 386(6) of the Code of Civil Procedure and 
apply a legal assessment that was incompatible with EU law, this would infringe 
the principle of the primacy of this law. In the judgment of 15 July 1964 in Case 
C-6/64, the Court of Justice held that the validity of measures adopted by the 
institutions of the Community could only be judged in the light of Community 
law. In fact, the law stemming from the Treaty, an independent source of law, 
could not because of its special and original nature be overridden by domestic 
legal provisions, however framed, without  the legal basis of the Community itself 
being called into question. Therefore the validity of a Community measure or its 
effects within a Member State could not be affected by allegations that it ran 
counter to either fundamental rights as formulated by the constitution of that State 
or the principles of a national constitutional structure. Then, in its judgment of 
5 October 2010 in Case C-173/09, the Court of Justice held that: ‘the national 
court, having exercised the discretion conferred on it by the second paragraph of 
Article 267 TFEU, is bound, for the purposes of the decision to be given in the 
main proceedings, by the interpretation of the provisions at issue given by the 
Court [of Justice] and must, if necessary, disregard the rulings of the higher court 
if it considers, having regard to that interpretation, that they are not consistent 
with European Union law.’ 
11 The referring court cites the Court of Justice’s case-law according to which a 
lower court must be free to refer questions to the Court of Justice if it considers 
that a higher court’s legal ruling could lead it to give a judgment contrary to EU 
law (judgments in Case 166/73, [Rheinmühlen-Düsseldorf], paragraphs 4 and 5; in 
Case C., paragraph 94; of 9 March 2010 in Case C-378/08 [ERG and Others], 
[…], paragraph 32), and that the possibility granted to the national court under 
Article 267(2) TFEU of referring a question to the Court of Justice for a 
preliminary ruling concerning the interpretation of the relevant provisions – before 
refraining, in a given case, from following guidance issued by a higher court that 
is contrary to EU law – cannot be transformed into an obligation (in a similar vein, 
see the judgment of 19 January 2010 in Case C-555/07 [Kücükdeveci], […], 
paragraphs 54 and 55). 
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12 The admissibility of a reference by a court to which a case has been referred back 
for re-examination was established by the Court of Justice in its judgment of 
20 October 2011 in Case C-3[96]/09 [Interedil]: ‘the existence of a national 
procedural rule cannot call into question the discretion of national courts not 
ruling at final instance to make a reference to the Court of Justice for a 
preliminary ruling where they have doubts, as in the main proceedings, as to the 
interpretation of European Union law’. 
13 The primacy of the Court of Justice’s interpretation was confirmed in the same 
judgment: ‘European Union law precludes a national court,’ ruling on a case 
referred back to it for re-examination by a higher-instance court as a result of an 
appeal, ‘from being bound by a national procedural rule under which that court is 
bound by the rulings of [the] higher national court, where it is apparent that the 
rulings of the higher court are at variance with European Union law, as interpreted 
by the Court of Justice.’ This judgment speaks to the fact that courts of lower 
instance are not bound by an interpretation of EU law carried out by a court of 
higher instance if the Court of Justice, in a judgment issued in response to a 
question referred for a preliminary ruling, has given a different interpretation of 
the provisions of EU law. 
14 The referring court cites a situation where the adjudicating court initially referred 
a question regarding Community law to the Corte suprema di cassatione (Supreme 
Court of Cassation, Italy), the latter provided an answer, and then the same 
adjudicating court referred the same matter to the Court of Justice for a 
preliminary ruling, and the Court of Justice provided a different answer. In this 
situation, the Court of Justice found that the adjudicating court (the court referring 
the question for a preliminary ruling) was not bound by the national court’s 
interpretation of EU law (Case C-369/09). The circumstances are different in the 
present case. The adjudicating court of first instance did not refer the question to 
the Court of Justice for a preliminary ruling, since it found that the crucial 
question to be decided on had already been adequately elucidated in the Court of 
Justice’s past case-law (cited in the court of first instance’s reasoning). However 
the court of second instance, which did not cite this case-law and also did not, on 
its own initiative, refer the matter to the Court of Justice for a preliminary ruling, 
set aside the judgment handed down by the court of first instance.  
15 The question that arises in these circumstances relates to the limits of the primacy 
of the principle of effectiveness of Community law over the principle of 
procedural autonomy, and in particular whether the guidance provided by a court 
of higher instance should be treated as binding if this would mean disregarding an 
interpretation by the Court of Justice that has been applied by a court of first 
instance. The Member States’ freedom to shape proceedings is limited by the 
principle of effectiveness, according to which national provisions must neither 
excessively hinder nor prevent the seeking of redress on the basis of EU law. In 
the direct application of the principle of effectiveness, it should therefore be found 
that the court of first instance is not bound by the guidance provided by the court 
of second instance. This was confirmed in the judgment of 9 September 2021 in 
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Case C-107/19: ‘The national court […] is bound, for the purposes of the decision 
to be given in the main proceedings, by the interpretation of the provisions at issue 
given by the Court [of Justice] and must, if necessary, disregard the rulings of the 
higher court if it considers, having regard to that interpretation, that they are not 
consistent with EU law.’ 
16 It should be recalled, in the light of the principle of primacy of EU law, that where 
it is impossible to interpret national law in compliance with the requirements of 
EU law, the national court which is called upon within the exercise of its 
jurisdiction to apply provisions of EU law is under a duty to give full effect to 
those provisions, if necessary refusing of its own motion to apply any conflicting 
provision of national legislation, even if adopted subsequently, and it is not 
necessary for the court to request or await the prior setting aside of such provision 
by legislative or other constitutional means (judgment of 24 June 2019, 
[Popławski], C-573/17, EU:C:2019:530, paragraph 58). The requirement to give 
full effect to EU law includes the obligation on a national court to alter established 
case-law, where necessary, if that case-law is based on an interpretation of 
national law that is incompatible with EU law (judgment of 5 July 2016, 
[Ognyanov], C-614/14, EU:C:2016:514, paragraph 35). This is also confirmed in 
the order of 17 July 2023 in Case C-55/23, in which the Court of Justice found 
that: ‘EU law, in particular Article 267 TFEU, must be interpreted as precluding a 
national court, ruling following the setting aside by a higher court of a decision 
which it delivered, from being bound, in accordance with national procedural law, 
by the legal rulings of that higher court, where those rulings are inconsistent with 
EU law, as interpreted by the Court [of Justice].’ 
17 It is also in the light of the primacy principle that, where it is impossible to 
interpret national law in compliance with the requirements of EU law, the national 
court which is called upon within the exercise of its jurisdiction to apply 
provisions of EU law is under a duty to give full effect to those provisions, if 
necessary refusing of its own motion to apply any conflicting provision of national 
legislation, even if adopted subsequently, and it is not necessary for that court to 
request or await the prior setting aside of such provision by legislative or other 
constitutional means (judgments of 5 October 2010, [Elchinov], C-173/09, 
EU:C:2010:581, paragraph 31 and the case-law cited, and of 9 September 2021, 
[Dopravní podnik hl. m. Prahy], C-107/19, EU:C:2021:722, paragraph 45). 
18 In its judgment of 22 February 2022 in Case C-430/21, the Court of Justice found 
inadmissible the initiation of disciplinary proceedings against a judge who, by 
applying EU law, had disregarded a legal opinion handed down by a court of 
higher instance that was binding on him pursuant to the provisions of national 
law: ‘The second subparagraph of Article 19(1) TEU, read in conjunction with 
Article 2 and Article 4(2) and (3) TEU, with Article 267 TFEU and with the 
principle of the primacy of EU law, must be interpreted as precluding national 
rules or a national practice under which a national judge may incur disciplinary 
liability on the ground that he or she has applied EU law, as interpreted by the 
Court [of Justice], thereby departing from case-law of the constitutional court of 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-137/25 
 
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the Member State concerned that is incompatible with the principle of the primacy 
of EU law.’ 
19 An argument in favour of a position whereby the court of first instance, after the 
setting aside of its judgment, needs to examine whether the guidance provided by 
the court of second instance is compatible with the Court of Justice’s case-law, 
may be found in the position set out in the judgment in Case C-724/22 (and also 
C-531/22), in which the Court of Justice found it admissible for the court hearing 
the enforcement proceedings to adopt, of its own motion, investigative measures 
in order to determine the factual and legal material needed to review whether the 
terms of a credit agreement concluded between a seller or supplier and a consumer 
were unfair, where such a review had already been carried out by the appropriate 
court in the course of the order for payment procedure, but did not meet the 
requirements of the principle of effectiveness as regards Directive 93/13. If such a 
review can be carried out in the context of enforcement proceedings, then a court 
hearing the case on its merits, as a court of first instance after the setting aside of 
its judgment, should a fortiori, have the opportunity to review whether the 
guidance provided by the court of second instance is compatible with the Court of 
Justice’s case-law. The court of first instance’s assessment can still be reviewed 
by the court of second instance. 
20 The second question is aimed at determining whether EU law, and in particular 
the principle of effectiveness, precludes a finding that the national court is entitled 
to assess, of its own motion, whether the legal opinion provided by the court of 
higher instance is contrary to EU law and whether, on this basis, it can find that 
this opinion is not binding on it. If this question is answered in the affirmative, 
questions arise as to the maintenance of coherence with the fundamental 
principles of a national legal system based on proceedings at two instances and 
respect for the principle of procedural autonomy. EU law cannot be used as a 
‘silver bullet’ that allows a court of lower instance to take an arbitrary approach to 
the application of these principles. If the domestic court cannot be bound by a 
legal assessment that is contrary to the Court of Justice’s interpretation or another 
source of EU law, it is necessary to clarify how the national court should decide 
on the case pending before it in such a way as to avoid any doubts regarding the 
abuse of law. The referring court is aware that if powers were granted to the 
national court that would allow it to deviate from the legal assessment by a court 
of higher instance, this might result in a high level of arbitrariness and thus 
potentially infringe the principle of hierarchy of the ordinary courts. The fact that 
the Court of Justice has ruled on a similar or even the same legal issue cannot 
therefore be sufficient justification for the court to decide, of its own motion, to 
depart from the national provisions, thereby expanding on a de jure basis the 
constitutional rule relating to the two instances of proceedings and the principle of 
procedural autonomy. 
21 The aim of upholding the fundamental principles of the national legal system, and 
also of observing the principle of procedural autonomy, should be subject to 
additional verification; in the opinion of the referring court, this should be done by 
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referring a question to the EU’s judicial bodies regarding the soundness of its own 
decision on the matter which disregards the guidance provided by the court of 
higher instance that is contrary to EU law. That is what the referring court did in 
the present case. A referral for a preliminary ruling in a situation such as the 
present case should be regarded as obligatory whenever the court has justified 
doubts about the compatibility with EU law of the legal assessment put forward 
by the court of higher instance. 
22 In view of the above, the referring court also seeks to clarify whether the 
requirements that apply when referring a question for a preliminary ruling remain 
unchanged in the event that the national court is attempting to verify the 
compatibility with EU law of a legal assessment by a court of higher instance, in a 
situation where the answer to that question, based on previous case-law, can be 
provided by the General Court. 
23 The referring court, citing the Court of Justice’s judgment of 16 January 1974 in 
Case 166/73 [Rheinmühlen-Düsseldorf], considers that Article 234 TEC 
[Article 267 TFEU] gives national courts the power and, where appropriate, 
imposes on them the obligation to refer a question for preliminary ruling, as soon 
as the court perceives either of its own motion or at the request of the parties that 
the litigation depends on a point referred to in the first paragraph of Article 234. It 
follows that national courts have the widest discretion in referring matters to the 
Court of Justice if they consider that a case pending before them raises questions 
involving interpretation, or consideration of the validity, of provisions of 
Community law, necessitating a decision on their part (paragraph 3). In a situation 
where a case is pending, for the second time, before a court sitting at first instance 
after a judgment originally delivered by that court has been quashed by a supreme 
court, the court at first instance remains free to refer questions to the Court of 
Justice pursuant to Article 234 TFEU, regardless of the existence of a rule of 
national law whereby a court is bound on points of law by the rulings of a higher 
court.