When Two Preliminary Questions Result in One and Half Answers: A 'Constitutional Tragedy' in Four Acts

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Table of Contents: I. Introduction. – II. How the story unfolded: the four acts of the “constitutional tragedy”. – II.1. Act 1: the referring order of the Dutch Council of State. – II.2. Act 2: the referring order of the Tribunal of Milan. – II.3. Act 3: the reply to the Dutch referral. – II.4. Act 4: the reply to the Italian referral. – III. The lesson learnt for the preliminary ruling procedure. – III.1. The “procedural x factors”: an urgent preliminary question, answered through a reasoned order, and a limited role for the national court. – III.2. The “usefulness” of the ruling. – III.3. The constitutional implications: when a preliminary ruling touches a “soft spot”. – IV. Conclusion.

Abstract: As is well known, in order for the preliminary reference procedure to function properly, national courts must have both the cognitive and the political ability to engage in a judicial dialogue with the Court of Justice. The Court of Justice itself must be able to – at least sufficiently – understand the factual background and the legal issues (and possible the broader legal and political background) of the question posed. In this Article, we discuss a case study, which shows that a number of procedural variables – often outside the control of the referring court – can come in the way of a fully functional preliminary reference mechanism. The Article examines two preliminary questions (from Italy and the Netherlands), by focusing specifically on the reasoning of both national referring courts, and the answers given to both courts by the Court of Justice, in order to assess whether and to which extent the Italian court has grounds to consider that its questions have not been properly answered. Ultimately, the contribution will attempt at teasing out, from this case study, a number of challenges posed to the correct functioning of the preliminary ruling procedure.

Keywords: CJEU – preliminary reference – trust – asylum – urgent preliminary reference – reasoned order.

European Papers, Vol. 5, 2020, No 2, pp. 911-930
2499-8249 - doi: 10.15166/2499-8249/418

* Professor of European and Comparative Administrative Law and Procedure, Maastricht University, jm.eliantonio@maastrichtuniversity.nl.
** Associate Professor of European Union Law, University of Florence, chiara.favilli@unifi.it.


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