Written by A Wallerman Ghavanini.
47 European Law Review 2022, pp 310–330
Abstract:
The preliminary ruling procedure remains an essential vehicle for the development of European Union law. The procedure is a two-court endeavour—a “dialogue between one court and another”, as the European Court of Justice has repeatedly characterised it. However, while the Court’s contribution is universally recognised, the role of referring courts is debated. This article examines whether the preliminary reference procedure offers national courts an effective opportunity to participate in the process of judicial law-making within the EU. It argues that, by and large, it does not. Empirically, this article demonstrates that, while referring courts can exert a modest influence over the outcome in individual cases, the Court shows little or no interest in the legal thinking of its national colleagues; rather, it develops its reasoning independently of the input provided by referring courts. Doctrinally, this attitude largely accords with the rules governing the preliminary reference procedure, and it likely matches the intent of the legislator. The article suggests, accordingly, that said procedure is a divided rather than a joint undertaking for the courts involved in it. This raises questions about the allocation and exercise of judicial powers in the EU.
