Lower Instance National Courts and Tribunals in Member States and Their Judicial Dialogue with the Court of Justice of the European Union

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Graham Butler


The vast majority of cases that are submitted to the Court of Justice of the European Union (the Court) through the preliminary reference procedure that is contained in Article 267 TFEU come from lower instance national courts and tribunals in EU Member States. As a result, it is not always appellate courts, or higher instance national courts and tribunals, such as courts of final appeal, which make orders for reference. Judicial dialogue between national courts and the Court through this Article 267 TFEU procedure is notable for its particular quality of it being open to receiving orders for reference, for an interpretation of EU law from national courts and tribunals – of any instance – from first instance, to final instance. But can this judicial dialogue between lower instance national courts and tribunals and the Court be impeded by national courts’ more senior national Brethren, with appeals being allowed against orders for reference within national legal orders? The case law of the Court on such an issue has been progressive, in that it developed slowly over time, and the Court, by 2021, becoming increasingly assertive. As will be analysed in this article, the Court’s approach to the arising issue has clearly been an attempt to balance the interests of judicial dialogue on the one hand, and national rules on the other. Yet, with the Court’s broader case law tightening the understanding of who constitutes the European judiciary, and ensuring that all national courts and tribunals remain independent from executive interference in EU Member States, the article commends recent developments, but makes the further plea for an affirmative judgment of the Court to not permit, as a matter of EU law, appeals against orders for reference made by lower instance national courts and tribunals in EU Member States, in the name of preserving judicial dialogue through the preliminary reference procedure.

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