'Grow Up!': Rethinking the Preliminary Reference Procedure from the Perspective of Maturity
| Author | Jasaron Bajwa |
| Position | LLB (LSE) '20 |
| Pages | 65-108 |
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‘Grow Up!’: Rethinking the Preliminary Reference
Procedure from the Perspective of Maturity
Jasaron Bajwa*
ABSTRACT
The clash between the German Constitutional Court and the Court of Justice of the E uropean
Union (‘CJEU’) in May 2020 over economic policy highlights the growing tension between the
European Union (‘EU’) and courts of last instance in Member States. This article argues that
such tensions demand a legal order which respects national judicial hierarchies, thereby becoming
mature. Through an examination of the preliminary reference procedure, this article puts forward
a novel set of reforms which seek to engage with 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 de parture 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 lia bility. All of this, it
follows, would result in a mature legal order based on genuine trust, which facilitates interactions
between the CJE U and national courts as the EU continues to legislate in constitutionally
sensitive areas.
* LLB (LSE) ‘20. The author would like to thank Floris de Witte for his invaluable support
and guidance. Any errors and omissions remain the author’s own.
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INTRODUCTION
This article assesses the Article 267 TFEU1 preliminary reference procedure
in light of the EU legal order’s maturity. In doing so, it challenges the current
underlying aim of the status quo – securing uniformity across the legal order – by
arguing that it is incompatible with a mature legal order. Instead, if we are to take
maturity seriously and facilitate judicial cooperation at the highest level, the main
purpose of the procedure ought to be resolving the confusion faced by national
judges in a way that focuses on clarity and respecting national judicial hierarchies.
A legal s ystem can be described as mature when the law is applied by
national courts simply because it is the law, as is the case when national courts
apply national law. This entails a legal system where external intervention and
incentives are not requ ired to ensure that law is applied. In a mature legal order,
national courts treat EU law as if it is national law – as far as it is possible to do
so in light of the doctrine of supremacy – and apply it as such. While some might
take issue with this conception of maturity, it has been chosen because it aligns
with the notion of national courts as ‘Community courts when applying
Community law’.2 Such a vision is uncontroversial so long as we support the basic
ideals of European integration. Capturing maturity in this way places emphasis on
two elements. First, courts in a mature legal order would apply EU law because it
is their duty to apply the law. This stands in contrast to legal orders where courts
apply the law because of external – usually political – motivations and incentives.
Second, courts w ithin mature legal orders trust each other to apply the law,
resulting in appeals processes which serve the purpose of eliminating legal
mistakes rather than creating an adversarial stage for courts.
In the first section, I will lay out the development of the EU’s legal order to
date, highlighting how its initial aim of making EU law effective has been
achieved, and that maintaining the judicial architecture, which secured that aim,
gives rise to inefficiencies. In light of the CJEU’s encroachment into increasingly
1 Consolidated Version of the Treaty on the Functioning of the European Union 2008
(TFEU 2008) C115/216.
2 Philip Allott, ‘Preliminary R ulings – Another Infant Disease’ (2000) 25(5) EL Rev 538,
541.
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constitutionally sensitive areas of national law, now is the right time to move
towards a m ature legal order. Next, in the sec ond section, it will be argued that
pursuing uniformity is incompatible with a mature legal order and that resolving
any confusion faced by national judges is a more suitable aim. Sec tion Three
outlines why national courts of last instance (‘COLIs’) play a central role in a
mature legal order, how their cooperation can be enticed by respecting national
judicial hierarchies and enforced through a clear and reasonable set of guidelines.
This section will also serve to highlight the immaturity in the status quo, which is
addressed through a novel set of reforms introduced in Section Four. T hese
reforms seek to lay the groundwork for a mature legal order by limiting the
circumstances in which lower national courts (‘LNCs’) can send preliminary
references, while also providing clear guidance for when COLIs are obliged to
send references . Finally, Sections Five and Six address some of the challenges
which the proposed reforms to Article 267 and Article 258 TFEU m ight face,3
stressing that these reforms do not seek to create a perfect EU legal order, but
instead attempt to reshape the reference procedure from a tool securing
uniformity to a tool resolving confusion. In the process, it will be argued that
these reforms are a s tep in the right direction towards developing a mature EU
legal order.
I. WHY NOW IS THE TIME FOR MATURITY
Before examining the core purpose at the heart of the preliminary reference
procedure and analysing the status quo, it is useful to chart how the EU’s legal
order has changed from its inception. This analysis begins with the legal order’s
initial aims, going on to explain how those aims continue to underpin its judicial
architecture more than 50 years after its earliest seminal cases. In addition to
reflecting on where the legal order has come from, this analysis highlights the
tensions which will shape its future, suggesting that now is the right time for it to
transition to maturity.
3 TFEU 2008 (n 1).
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