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Supreme administrative courts’ preliminary questions to the CJEU: start of a dialogue or talking to deaf ears?

Rob van Gestel and Jurgen de Poorter

Keywords: preliminary reference procedure; provisional answers; European Court of Justice; supreme administrative courts; judicial dialogue

The preliminary reference procedure has long been envisaged as a judicial dialogue between the Court of Justice of the European Union (CJEU) and national courts. However, in reality the relationship between the courts appears to be closer to a relationship of living apart together than to a happy marriage between equal partners. In this contribution, we study the use of so-called provisional answers as a means for national supreme administrative courts to send signals to the CJEU and to start a dialogue about the proper interpretation of EU law. Our analysis of case law and survey results, combined with the outcomes of interviews with judges from ten of the highest administrative courts and with judges and Advocate Generals from the CJEU, reveals there are both practical reasons and fundamentally different views on judicial law making behind the lack of dialogue. On a deeper level, there appears to be a lack of mutual trust that prevents supreme administrative courts from making better use of provisional answers to inform the CJEU and for the CJEU to take the supreme administrative courts more seriously.

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