IDEAS home Printed from https://ideas.repec.org/
MyIDEAS: Login to save this paper or follow this series

The Division of Powers between the European Court of Justice and National Courts

  • Gareth Davies
Registered author(s):

    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.

    If you experience problems downloading a file, check if you have the proper application to view it first. 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.

    File URL: https://www.wiso.uni-hamburg.de/fileadmin/sowi/politik/governance/ConWeb_Papers/conweb3-2004.pdf
    Our checks indicate that this address may not be valid because: 500 Can't connect to www.wiso.uni-hamburg.de:443. If this is indeed the case, please notify (Sassan GHOLIAGHA)


    File Function: Full text
    Download Restriction: no

    Paper provided by University of Bath, Department of European Studies and Modern Languages in its series The Constitutionalism Web-Papers with number p0014.

    as
    in new window

    Length:
    Date of creation: 30 Apr 2004
    Date of revision:
    Handle: RePEc:erp:conweb:p0014
    Contact details of provider: Web page: http://www.bath.ac.uk/esml/

    No references listed on IDEAS
    You can help add them by filling out this form.

    This item is not listed on Wikipedia, on a reading list or among the top items on IDEAS.

    When requesting a correction, please mention this item's handle: RePEc:erp:conweb:p0014. See general information about how to correct material in RePEc.

    For technical questions regarding this item, or to correct its authors, title, abstract, bibliographic or download information, contact: (Sassan GHOLIAGHA)

    If you have authored this item and are not yet registered with RePEc, we encourage you to do it here. This allows to link your profile to this item. It also allows you to accept potential citations to this item that we are uncertain about.

    If references are entirely missing, you can add them using this form.

    If the full references list an item that is present in RePEc, but the system did not link to it, you can help with this form.

    If you know of missing items citing this one, you can help us creating those links by adding the relevant references in the same way as above, for each refering item. If you are a registered author of this item, you may also want to check the "citations" tab in your profile, as there may be some citations waiting for confirmation.

    Please note that corrections may take a couple of weeks to filter through the various RePEc services.

    This information is provided to you by IDEAS at the Research Division of the Federal Reserve Bank of St. Louis using RePEc data.