The Court only has jurisdiction if the question relates to a pending dispute and if the national court or tribunal ‘is called upon to give a decision capable of taking into account the preliminary ruling'(cu trimite la cauza 338/85). The general view is that public prosecutors are not able to refer to the Court. However, in one of the first criminal cases decided by the Court, it declared the Pretore di Salo admissible. It observed that, in the pending proceedings, the Pretore combined the functions of a public prosecutor and an examining magistrate. What mattered was that the ‘request emanates from a court or tribunal which has acted in the general framework of its task of judging, independently and in accordance with the law, cases coming within the jurisdiction conferred on it by law, even though certain functions of that court or tribunal in the proceedings which gave rise to the reference for a preliminary ruling are not, strictly speaking, of a judicial nature (cu trimitere la cauza 14/86 Pretore di Salo).
With reference to Pretore di Salo, Advocate General Ruiz-Jarabo Colomer stated that all kinds of preliminary investigations could qualify:
„The investigation could have resulted in an order than no further action be taken, in a summons to appear, or in an acquittal, but it could not, under any circumstances, create an inrreversible procedural situation, nor did it constitute, for the purpose of national law, a judicial act subject to the fundamental safeguards”(C-60/02, punctul 22 din Concluzii).
In the light of the evolving case law of the Court on ne bis in idem and out-of-court settlements by a prosecutor, the question arises as to whether a request by a prosecutor should remain inadmissible. (…) If the Court in Gozutok attached much weight to the fact that an out-of-court settlement has the same value as a court decision, then an investigation by a prosecutor might qualify for a reference. (…)
The scope of some Framework Decisions and Directives is determined by proceedings before the ‘court having jurisdiction in particular in criminal matters’. This is a concept that needs a uniform application of Union Law. The question is whether this limitation has jurisdictional consequences for the Court.
(European Criminal Law, Intersentia, a treia ediție, 2016, la pp. 138-9)