Marc De Werd: Dynamics at play in the EU preliminary ruling procedure

Marc De Werd, Dynamics at play in the EU preliminary ruling procedure, Maastricht Journal of European and Comparative Law 1 (2015)


Form follows function is a principle associated with modernist architecture and industrial design in the 20th century. Th e principle is that the shape of a building or object should be primarily based upon its intended function or purpose. However, in the eyes of many national judges and legal practitioners, the EU judicial architecture lacks comprehensibility. To them, the EU ‘building’ is reminiscent of the alienating drawings of the famous Dutch graphic artist M.C. Escher (‘Strange Loops’). Th ey cannot fi nd the entrance (nor the exit) and fall through ceilings on staircases that only go up. Th e EU architecture seems to shout at judges to keep out, instead of welcoming them to enter the building. Hereaft er I will further elaborate on these impressions (Section 2.B.) that are indeed alarming, especially because national judges enforce EU law at the fi rst and last instance. Misunderstandings about the interpretation and validity of primary and secondary EU law can seriously hamper the eff ective application of EU law (‘eff et utile’) at the national level. Th e key instrument to ensure uniform interpretation and application of EU law by national courts and tribunals is the preliminary ruling procedure. Th is procedure2 was designed in the 1950s in the context of the European Coal and Steel Community, which was quite diff erent from the current Union. Th erefore the question is justifi ed if the preliminary ruling procedure takes suffi ciently into account the current dynamics at play. In 2014, the Maastricht Journal of European and Comparative Law published a Legal Debate on reforming the operation of the Court of Justice of the EU. Th e debate contained contributions by fi ve authors. Eleanor Sharpston (Advocate General, CJEU) wrote about how to make the Court of Justice more productive without encroaching on the quality of its decision-making. Sacha Prechal (Judge, CJEU) refl ected on the ‘responsabilization’ of the national courts when submitting their requests to the Court of Justice. Michal Bobek (Professor of European Law, College of Europe) wrote about the experiences of the judiciary in the Central and Eastern European Countries. Eric Gippini-Fournier (Legal Service, European Commission) drew attention to the operation the General Court. Finally, Professor Monica Claes of Maastricht University drew the diff erent pieces together and provided her concluding remarks on this topic. In this essay I will discuss the preliminary ruling procedure from the viewpoint of a national appeal court judge, from time to time using my own experiences with (and appreciation of) the procedure.


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