Judicial cooperation in the EU
The original vision of the relation between the European Court of Justice (ECJ) and national courts was characterised as horizontal: each court was equal, but with differing functions. The national court decides whether to refer a question of EU law under the preliminary reference procedure of Article 254 TFEU, the ECJ provides an answer interpreting the point of EU law, and the national court applies the ECJ’s guidance to decide the case before it. In practice, this horizontal conception has become more vertical, due to the ECJ’s superior position.
Although the procedure is formally a bilateral one between the ECJ and the particular national court making the reference, in practice it has become a multilateral relationship. The rulings of the ECJ become accepted in all other national courts when the same question of EU law arises. In this way, the preliminary reference procedure has been instrumental in developing an EU judicial system with the ECJ at its apex, handing down decisions, which bind the courts of all the Member States.
Formally, national courts have complete discretion whether to refer, and even the highest court may refuse to make a reference if it decides it is not necessary in order to decide the case. Refusal to make a reference may result from the national court deciding that it is itself able to answer any issue involving EU law. For example, there may be an existing interpretation already given by the ECJ in an earlier case and that answer leaves no scope for any reasonable doubt in deciding the case.
The ECJ has been concerned to persuade national courts that references should be made. It acknowledges that the answer to the question of EU law may not be obvious, given ‘the characteristic features of Union law and the particular difficulties to which its interpretation gives rise.’ It urges the national court to bear in mind that EU legislation is in multiple languages, all equally authentic, that EU law has a terminology, which is peculiar to it, that legal concepts do not have the same meaning in EU law and Member State laws; and that a profound and detailed understanding of the context of EU law, its objectives and evolution are important for interpretation ((CILFIT & Lanificio di Gavardo SpA v. Ministry of Health, Case 283/81, ).
As a result, lower courts may prefer to make references directly to the ECJ, by-passing higher courts, though higher courts may be reluctant to adopt a subordinate position to the ECJ. This disruptive effect on judicial hierarchies and constitutional linkages between the judicial, executive and legislative branches of Member States may be seen as part of the catalytic effect of the emergence of a supranational entity, the European Union.