Preliminary rulings in criminal matters after Lisbon: the experience of Estonian courts

This article examines the operation and limits of the preliminary reference procedure under Article 267 of the TFEU in criminal proceedings, drawing on the experience of Estonian courts following the entry into force of the Lisbon Treaty. Based on a comprehensive analysis of all preliminary references submitted from Estonia in criminal matters, as well as cases in which references were requested but declined, the article identifies a clear institutional pattern: in practice, preliminary references have been submitted exclusively by the Supreme Court, while lower courts have refrained from doing so. Although this concentration may enhance doctrinal coherence, it also narrows the multi-level judicial dialogue envisaged by Article 267 of the TFEU. The Estonian experience further reveals significant variation in the practical and normative impact of preliminary rulings. Some decisions have produced systemic consequences, reshaping investigative practice and prompting legislative reform even where the outcome of the referring case remained unchanged, whereas others have had only dispute-specific effects. Particular attention is devoted to the temporal dimension of the preliminary reference procedure. Under Estonian law, the submission of a preliminary reference does not suspend limitation periods, creating a risk that proceedings may become time-barred before the Court of Justice delivers its judgement. This structural feature may undermine the dispute-resolving function of Article 267 of the TFEU and may thereby influence judicial willingness to refer. By comparing cases in which references were made with those in which they were declined, the article argues that the assessment of necessity under Article 267 of the TFEU cannot be reduced to a mechanical application of the CILFIT and CIM criteria and, instead, requires a context-sensitive exercise of judicial judgement, balancing systemic importance, case-specific relevance, and procedural constraints. The Estonian experience thus illustrates both the value and the practical limits of the preliminary reference mechanism in criminal proceedings.