Edited by Adam Lazowski and Steven Blockmans
Chapter 12: The Court of Justice, the national courts, and the spirit of cooperation: between Dichtung and Wahrheit
The importance of the preliminary ruling procedure for the judicial structure of the Union and EU law as a system of law can hardly be overstated. The most significant decisions that shaped the EU legal order, including household names like Van Gend en Loos, Costa, Internationale Handelsgesellschaft, Factortame, Mangold, and many others, were all rendered as answers to preliminary ruling questions posed by national courts pursuant to Art. 177 TE(E)C, later Art. 234 TEC, today Art. 267 TFEU. There are naturally other ways in which the national courts and the Court of Justice of the European Union (the Court) may mutually engage. If we remain within the framework of formalized judicial proceedings, a national court may for instance draw inspiration from a decision of the Court rendered in proceedings other than preliminary rulings. A national court may also rely on a decision of the Court as a (mere) persuasive authority outside its material or temporal scope of application. Conversely, the Court might seek inspiration from the case law of national courts which can be seen as evidence of general principles of law common to the Member States, even without expressly acknowledging it by a citation in its decision or the Opinion of an Advocate General. Equally, the Court might be sensitive to messages sent in particular by national superior courts outside the preliminary rulings procedure. Such messages would be transmitted through a different case decided on the national level, which has not been submitted to the Court.
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