The Cartesio Judgment: Empowering Lower Courts by the European Court of Justice

Abstract:     
Under European Union law a national court is free to refer questions for a preliminary ruling to the European Court of Justice if the court thinks that a decision on the question is necessary to enable it to give judgment. Since the Bosch case there has always been a tension between this right of the national courts to refer and the appealability of the reference order to national superior courts. The paper focuses on the Cartesio case in which the European Court seems to put an end to the uncertainty by interpreting the Treaty as permitting the appeal from such orders but excluding such national legal rules which allow appeallate courts to set aside or modify the reference by quashing or varying the order. In doing so, the Court provided the national lower courts with a powerful procedural tool by which they can challenge by reference the authoritative national caselaw established by superior courts on the interpretation of EU legal rules ("Rheinmühlen setting").

Number of Pages in PDF File: 12

Keywords: European Union law, preliminary ruling procedure, Cartesio, appeal from the order of reference, national courts' right to refer, "Rheinmühlen setting"

JEL Classification: K33

Accepted Paper Series