competences nor modifies existing ones. Since the referring Portuguese court (Tribunal do Trabalho do Porto) had provided no elements from which it could be considered that the contested national provision was implementing EU law, the Court of Justice found itself without competence to decide on the preliminary reference.VI Notwithstanding the fact that the austerity measures included in the State Budget Act for 2012 were adopted after the bailout and in accordance with the MoU – a fact also neglected in the references submitted by the Portuguese courts in Fidelidade Mundial and Via Directa –, the Court of Justice declared that the doubts ‘share(d) the same nature’VII and the questions submitted were ‘analogous’VIII to the ones sent before the bailout in Sindicato dos Bancários do Norte. In both cases the questions submitted did not contained any concrete element enabling the view to be taken that the 2011 or the 2012 Budget Law sought to implement EU law.IX 1.2. Bailout instruments such as the MoU have been considered the most important social source in the history of the EU (Kilpatrick 2014: 393). Their implementation in Portugal heralded a dramatic erosion of social rights through the adoption of drastic cuts in a wide range of welfare allowances and in public investment in housing, education and health (Nogueira de Brito 2014: 68-73). How is it then possible that the compatibility of the MoU with the EU´s social Constitution was never tested in court? In this article I argue that a systemic failure in the jurisdictional system of the EU immunized the MoU to any kind of judicial review. At the apex of the system, the Luxembourg court failed when it refused to answer the preliminary references submitted by Portuguese lower courts. The MoU was signed by an EU institution within the framework of EU legislation (section one). That means that it was a binding EU legal act that could be challenged on multiple EU law grounds (section two). By not tracing the genealogy of the austerity measures adopted by the Portuguese government to the MoU, the Court of Justice was simply nowhere to be seen during the bailout (section three). At the bottom of the jurisdictional system of the EU, Portuguese courts failed to properly identify EU legal acts that were the source of national budgetary provisions that foresaw austerity measures; moreover, they disregarded their role as common EU law courts of ordinary jurisdiction when they did not refer Except where otherwise noted content on this site is licensed under a Creative Commons 2.5 Italy License E -109