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 4: Polish civil judiciary vis-à-vis the preliminary ruling procedure: in search of a mid-range theory
It is now widely recognized as common knowledge that many fundamental principles underpinning the EU legal system have been established through the judgments of the Court of Justice of the European Union (hereinafter the Court of Justice or CJEU). Such judgments were responses to requests from national courts which decided to refer their questions concerning interpretation of EU law to the Court of Justice. This competence of national courts to send their legal inquiries to the CJEU follows from the procedure of preliminary ruling that is enshrined in Article 267 TFEU. For decades now, the preliminary ruling procedure has proven to be one of the essential, constructive mechanisms for the EU’s entire legal system. The Court of Justice held that the procedure is cardinal for the ‘preservation of the Community character of the law established by the Treaty’. Elsewhere it is asserted that the provision constitutes the most crucial procedural rule of the Treaties. The mechanism, which is of discretionary character for national lower courts5 and of obligatory character for national courts against the decisions of which there is no further judicial remedy, is based on cooperation and dialogue between national courts and the CJEU and has become the main communication channel between the supranational and national judges. The competence to refer questions to the Court of Justice is exclusively vested in national judges. Hence, the success of the mechanism relies, to a large degree, on the willingness of national courts to accept the CJEU’s authority as the highest interpreter of EU law and to cooperate accordingly.
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