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Monika Kirilova Kirova
courts play a fundamental role in the application of Union law. Relations
between CJEU and national courts in light of the ‘preliminary ruling
procedure’ have been described as cooperative. However, certain flaws
within the procedure have led to situations where the national courts
have become reluctant to refer cases to the CJEU. In addition, although
the CJEU is seeking cooperation, it shapes the manner of this cooperation, thus positioning itself as a superior court. The establishment of the
Acte Clair1 doctrine and the introduction of State liability for judicial
errors in Gerhard Köbler v Republic Österreich [2003] will be given as
examples of the possible transformation of the relationship between the
national courts and the CJEU.
Preliminary Ruling Procedure – The Matter of Cooperation
The relationship between the CJEU and the national courts has been well
defined by Article 267 of the Treaty on the Functioning of the European Union 2007 (TFEU). Under this Treaty provision, the CJEU has the
jurisdiction to give rulings on questions of interpretation and validity of
EU law at the request of a national court using the ‘preliminary ruling
procedure’.2 The justification for this competence is found in the Report
of the Court of Justice on Certain Aspects of the Application of the Treaty on European Union (1995: 11):
[a]ny weakening... of the uniform application and interpretation of
Community law throughout the Union would be liable to give rise
to distortions of competition and discrimination between economic
operators, thus jeopardizing equality of opportunity as between those
operators and consequently the proper functioning of the internal
market.
1 ‘Acte
Clair’ – a doctrine in European law according to which cases involving a law with
a reasonably obvious interpretation do not need to be referred to the CJEU.
2 When the CJEU gives a preliminary ruling, it only explains the meaning of a certain
provision of law (or invalidates a provision, where needed), and does not give judgment;
i.e. it does not decide upon the outcome of the dispute.