The Division of Powers between the European Court of Justice and National Courts

The preliminary reference procedure requires the Court of Justice to interpret the Treaty and national courts to apply that interpretation to the facts. However, often the Court gives such specific interpretations that the role of the national court is rendered trivial. This paper argues that two problems result. First, ‘which court decides’ is a question of competence allocation. A court with a quasi-constitutional nature has an obligation to respect this, even if it means self-denial. By crossing the line between functions the Court undermines its own status as neutral arbiter, and threatens the integrity of a Community where courts have an unusually powerful role. Second, infantilising national courts is bad for the effectiveness of Community law. Good regulation relies on them fully integrating that law into their practice, which the Court’s micro-management does not allow. The argument against this, the need for uniformity, is suggested to be short-term and self-defeating. Finally the paper looks for explanations of the Court’s approach in the civil and common law traditions of the Member States, before considering possibilities for competition between Court systems, and for a move from references to appeals.