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 facilitates ‘direct cooperation’ (Slob
[2006]: 34) between the CJEU and the national courts. It has been further
described as a relationship of trust and dialogue. More importantly, it is a
source of mutual learning of practices and underlying principles (Arnull
2010: 62).
National courts play a significant role in this fruitful communication.
They initiate the dialogue by asking a question, and they eventually apply EU law. It could be argued that Member States’ courts initially favoured this approach of mutual communication. Lord Denning’s speech
(HP Bulmer Ltd & Anor v. J. Bollinger SA & Ors [1974]: 420) shows
that English courts have recognised the CJEU as the “supreme court”
and “ultimate authority” in questions of European Union law. Similar examples can also be found in other jurisdictions. In Simmenthal II [1978],
the preliminary reference was successfully used to clarify an important
aspect of EU law’s supremacy. It was decided that national courts could
refuse to apply incompatible legislation without consulting a Constitutional Court.3
However, the spirit of mutual assistance between national courts and the
CJEU might be threatened because of certain imperfections in the procedure itself: namely unacceptable delays, extra costs and incomprehensive judgments. Consequently, the UK’s highest courts became wary of
making a reference to the CJEU, as observed by Kenny (2012: 438) and
Rasmussen (2000: 1072). The average length of the preliminary ruling
procedure in 2012 was 15.7 months (Statistics Concerning Judicial Activity in 2012: Consolidation of the Results Achieved in Recent Years
2012). An example of an English courts’ consideration of such factors
3 The
ability of a lower national court to set aside domestic legislation without consulting
the Constitutional Court could be viewed as revolutionary, because it was contrary to the
constitutional tradition in some Member States (this case refers to Italy). By having such
impact on the domestic legal system, the existence of the preliminary ruling procedure
proves to be extremely significant for the development of the Community legal system.
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