Why National Courts Must Explain Non-Referral: The Preliminary Ruling Procedure and the Duty to Give Reasons

Abstract

The Court of Justice of the European Union (CJEU) portrays the preliminary ruling procedure (PRP) as a dialogue between itself and national courts in which parties play a secondary role. Under this conception, what duty does national judges have to justify when they decide not to request a preliminary ruling? While both the CJEU and the European Court of Human Rights (ECtHR) have case-law on this matter, the expectations placed on national courts remain unclear. This article clarifies what is expected by outlining the purpose, applicability and extent of the duty to give reasons for non-referral. It shows that the duty arises primarily in party-led initiatives before courts of last instance, and that the required reasoning depends on the diligence of the party’s request. This has constitutional implications: by highlighting the parties, the duty partially transforms the PRP, marking a departure from their traditional exclusion from the procedure. Yet, reliance on party requests leaves gaps in absence of such initiatives. This article argues that the duty should also be understood in the logic of Article 267(3) TFEU – requiring apex courts to justify non-referral on their own motion, in line with their obligation to refer.