‘“Grow Up!”: Rethinking the Preliminary Reference Procedure from the Perspective of Maturity’
The clash between the German Constitutional Court and the CJEU in May 2020 over economic policy highlights the growing tension between the EU and the courts of last instance in Member States. This article argues that such tensions demand a legal order which respects national judicial hierarchies, and thereby becoming mature. Through an examination of the preliminary reference procedure, this article puts forward a novel set of reforms which seek to engage national courts of last instance, while forcing lower national courts to treat EU law as national law where possible. This is achieved by suggesting limitations to the circumstances in which courts can refer cases to the CJEU. These proposed reforms mark a departure from the conventional aim of the procedure – to ensure uniformity – which is abandoned in favour of a focus on national judges’ abilities to provide confident interpretations of EU law. In addition to focusing on bringing the legal order to maturity through respect of national hierarchies, this article suggests a robust system of holding national courts to account through clearer rules and reforms to Köbler liability. All of this, it follows, would result in a mature legal order based on genuine trust, which facilitates interactions between the CJEU and national courts as the EU continues to legislate in constitutionally sensitive areas.
How to Cite:
Bajwa, J., 2021. ‘“Grow Up!”: Rethinking the Preliminary Reference Procedure from the Perspective of Maturity’. LSE Law Review, 6(2), pp.65–108.
24 Feb 2021.