As You Sow, So Shall You Reap? The Influence of the Referring Court on the Preliminary Ruling of the Court of Justice
Short description
The preliminary ruling procedure under Article 267 in the Treaty of the Functioning of the European Union (TFEU) provides that the European Court of Justice (ECJ), at the request of national courts in the Member States, can deliver rulings on the interpretation or validity of EU law. Throughout the years the preliminary ruling procedure has given rise to many milestone judgments and some of the most characteristic traits of EU law, most famously the doctrines of supremacy and direct effect.
The objective of the proposed project is to establish whether and to what extent national courts are able to influence the outcome reached by the ECJ by the way they draft their requests for preliminary rulings.
About the Project
The preliminary ruling procedure under Article 267 in the Treaty of the Functioning of the European Union (TFEU) provides that the European Court of Justice (ECJ), at the request of national courts in the Member States, can deliver rulings on the interpretation or validity of EU law. Throughout the years the preliminary ruling procedure has given rise to many milestone judgments and some of the most characteristic traits of EU law, most famously the doctrines of supremacy and direct effect.
The procedure is a two-court endeavour—a “dialogue between one court and another”, as the ECJ has repeatedly characterised it. However , while the Court’ s contribution is universally recognised, the role of referring courts is debated. The objective of the project was to establish whether national courts are able to influence the outcome reached by the ECJ by the way they draft their requests for preliminary rulings, and thereby to what extent the procedure offers national courts an effective opportunity to participate in the process of judicial law-making within the EU.
Through an empirical examination of the orders for reference and resulting judgments in 129 preliminary reference cases before the ECJ, the project 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. The latter, thus, remain important players in the enforcement of EU law, but minor ones in its development.
Publications
A Wallerman Ghavanini, “Mostly Harmless: the Referring Court in the Preliminary Reference Procedure”, 47 European Law Review 2022, pp 310–330
A Wallerman Ghavanini, “Power Talk: Effects of Inter-Court Disagreement on Legal Reasoning in the Preliminary Reference Procedure”, 5 European Papers – A Journal on Law and Integration 2020, pp 887–910
U Šadl and A Wallerman, “’The Referring Court Asks, in Essence’: Is the Court of Justice’s Reformulation of Preliminary Questions a Decision Writing Fixture or a Decision-Making Approach?”, 25 European Law Journal 2019, pp 416–433
A Wallerman, “Can Two Walk Together, Except They Be Agreed? Preliminary References and (the Erosion of) National Procedural Autonomy”, 44 European Law Review 2019, pp 159–177