The Division of Powers between the European Court of Justice and National Courts: A Critical Look at Interpretation and Application in the Preliminary Reference Procedure

REGULATING THE INTERNAL MARKET, Niamh Nic Shuibne, ed, Edward Elgar,2006

27 Pages Posted: 1 Dec 2005

See all articles by Gareth T. Davies

Gareth T. Davies

Free University of Amsterdam - Faculty of Law

Abstract

The preliminary reference procedure requires the Court of Justice to interpret the Treaty and national courts to apply that interpretation to the facts. However, often the Court gives such specific interpretations that the role of the national court is rendered trivial. This paper argues that two problems result. First, 'which court decides' is a question of competence allocation. A court with a quasi-constitutional nature has an obligation to respect this, even if it means self-denial. By crossing the line between functions the Court undermines its own status as neutral arbiter, and threatens the integrity of a Community where courts have an unusually powerful role. Second, infantilising national courts is bad for the effectiveness of Community law. Good regulation relies on them fully integrating that law into their practice, which the Court's micro-management does not allow. The argument against this, the need for uniformity, is suggested to be short-term and self-defeating. Finally the paper looks for explanations of the Court's approach in the civil and common law traditions of the Member States, before considering possibilities for competition between Court systems, and for a move from references to appeals.

Keywords: european union, european law, european court of justice, preliminary references, subsidiarity, competences, courts and tribunals, centralisation/decentralisation

JEL Classification: K33, K41, K40, K49

Suggested Citation

Davies, Gareth T., The Division of Powers between the European Court of Justice and National Courts: A Critical Look at Interpretation and Application in the Preliminary Reference Procedure. REGULATING THE INTERNAL MARKET, Niamh Nic Shuibne, ed., Edward Elgar, 2006. Available at SSRN: https://ssrn.com/abstract=861824

Gareth T. Davies (Contact Author)

Free University of Amsterdam - Faculty of Law ( email )

De Boelelaan 1105
1081 HV Amsterdam
Netherlands
+31 20 5986303 (Phone)

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