Higher Courts, Lower Courts and preliminary Ruling: a Lesson from Interedil

The ECJ Interedil decision of 20 October 2011 has been given wide attention as far as Regulation No 1346/2000 on insolvency proceedings and the issue on COMI are concerned. Little notice, on the contrary, was given to the part of this judgement dealing with the effects of a superior court decision, having the res judicata effect pursuant to Article 382 of the Italian Civil Procedure Code, on the referral for preliminary ruling of a lower court. This part of the judgment, consistent with the previous case-law and with the recent Elkinov and Cartesio cases, is discussed hereunder. It is further argued that consideration for this decision should convince higher courts to refer for preliminary ruling to the ECJ more frequently.