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.
Download Info
To download:
If you experience problems downloading a file, check if you have the
proper application to
view it first. Information about this may be contained
in the File-Format links below. In case of further problems read
the IDEAS help
page. Note that these files are not on the IDEAS
site. Please be patient as the files may be large.
Publisher Info
Paper provided by University of Bath, Department of European Studies and Modern Languages in its series The Constitutionalism Web-Papers with number
p0014.
For technical questions regarding this item, or to correct its listing, contact: (Hannes Hansen-Magnusson) The email address of this maintainer does not seem to be valid anymore. Please ask Hannes Hansen-Magnusson to update the entry or send us the correct address..