An Analysis of the Relationship between National Courts and the Court of
Justice of the European Union – Shifting from Cooperation to Superiority
the preliminary ruling procedure.
Conclusion
It is suggested that the relationship between the CJEU and the national
courts has changed throughout the years. Although the preliminary ruling procedure was initially established as an opportunity for communication between CJEU and the national courts, the problems of the system
have discouraged English courts from taking part in this cooperation.
The UK’s House of Lords considered the unacceptable delays, costs
and incomprehensive rulings as crucial factors in making their decision
whether to refer or not. However, it is not only the national courts which
are in the process of abstaining from the notion of cooperation.
The CJEU’s positioning as a superior court has also affected the initial
idea of partnership. It sought to limit national courts’ discretion in determining the question of making a reference by introducing the Acte
Clair doctrine. Unexpectedly, the doctrine has been relied on in a wide
spectrum of cases, implying national courts’ eagerness to undertake an
independent role in the development of the European Union’s legal order and the non-acceptance of the CJEU’s self-positioning as a superior
court. As a result, the CJEU may perceive it necessary to intervene, as in
Köbler where State liability for judicial errors was established. However,
the CJEU set a high threshold for incurring liability, reminding national
courts that they should consult it by making a reference. In consequence,
the CJEU once again succeeded in putting forward its will and emphasising its superiority.
The author agrees with the prediction made by Wattel (2004: 178) that
eventually courts might engage in referring only because they do not
want their governments to be held liable. Unfortunately, this is a significant departure from the genuine aim of the preliminary ruling procedure
and can potentially place courts in a political dispute. This article rec-
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