New Issues, Theories and Methods
Judicial Review and Cooperation series
Edited by Bruno de Witte, Juan A. Mayoral, Urszula Jaremba, Marlene Wind and Karolina Podstawa
Chapter 6: Operationalizing the European mandate of national courts: insights from the Netherlands
It is today commonplace to assert that ‘all national courts are European courts’ and that they act under a ‘European mandate’ to protect the rights individuals derive from EU law. We all know that national courts should play a pivotal role in ensuring respect for and the effectiveness of EU law on a daily basis; yet this mandate remains somewhat hidden in the European Treaties and is often not explicitly acknowledged in national legislation. Hence, the European judicial system heavily depends on the cooperation of national courts which simultaneously remain embedded within and continue to function as organs of their state. As such, the system is vulnerable. This vulnerability is most immediately apparent when national courts refuse to take up their European mandate and do so in an open and principled manner, which has happened notably in the areas of fundamental rights, the review of alleged ultra vires acts and – more recently – the protection of ‘national identity’. Considering that the main domestic protagonists in these cases are national supreme or constitutional courts, it is unsurprising that their postures of opposition have attracted significant, ongoing academic attention.
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