'In the Court We Trust' - But Should We? On the Need for Hierarchy and Differentiation in the Preliminary Ruling Procedure

Posted: 20 Nov 2006

See all articles by Jan Komárek

Jan Komárek

iCourts, Faculty of Law, University of Copenhagen

Date Written: November 19, 2006

Abstract

The article proposes reconsidering many dogmatic assumptions concerning the ECJ and its role in the EU judicial system. It questions what "uniformity", "judicial protection of individuals" or "inter-court dialogue" really mean. We will find that these concepts often hide much deeper claims, which are never articulated clearly. This fact burdens a real discussion on the proper design of the EU judiciary.

The article makes a clear proposal: lower courts should not be allowed to send preliminary references to the ECJ. At the same time, some measure of differentiation in the preliminary ruling procedure should be allowed, so as it fits various national proceedings, from where it may arise.

Narrowing down the possibility of lower courts to send preliminary references reflects the philosophy of the ECJ's role as a veritable Supreme Court for the Union and its courts. Supreme, not because its hierarchically superior position over the national courts - for such a position this article does not advocate. This article believes that the fundamental Court's task, when ensur[ing] that in the interpretation and application of this Treaty the law is observed, is to provide national courts with authoritative guidance. However, to be able to speak with authority, it must speak clearly and persuasively. This cannot be done if it pulverizes its authority into hundreds of (sometimes) contradictory and (often) insufficiently reasoned answers. The current system of preliminary reference, which demolishes national judicial structures by allowing the lowest parts of the judicial pyramid to talk directly to the ultimate interpretative authority, has negative effects both for national judicial process and for the ECJ's mission.

Even if the proposal fails, its ambition may be more modest and still important: to allow discussing the current structure of the EU judicial system critically - without the burden of prejudice which stands in the way of a genuine discussion.

Keywords: European law, judicial system, European Court of Justice, national courts, hierarchy, preliminary ruling procedure

JEL Classification: K10

Suggested Citation

Komárek, Jan, 'In the Court We Trust' - But Should We? On the Need for Hierarchy and Differentiation in the Preliminary Ruling Procedure (November 19, 2006). Available at SSRN: https://ssrn.com/abstract=946010

Jan Komárek (Contact Author)

iCourts, Faculty of Law, University of Copenhagen ( email )

Studiestraede 6
Copenhagen, DK-1455
Denmark

HOME PAGE: http://jura.ku.dk/icourts/staff/profile/?pure=en/persons/591330

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