Power Talk: Effects of Inter-Court Disagreement on Legal Reasoning in the Preliminary Reference Procedure

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Table of Contents: I. Introduction. – II. Conceptual framework and terminology. – III. Data and research design. – III.1. The dataset. – III.2. Research process. – IV. The Court’s behaviour. – V. The Court’s strategies. – VI. Conclusions.

Abstract: Recent cases of national court rebellion against the rulings of the EU Court of Justice have raised questions about the meaning of judicial cooperation within the preliminary reference procedure. Although tensions are inevitable, the trust of Member State judiciaries is crucial for the dissemination and enforcement of the Court’s rulings. This Article uses legal empirical method to study how the Court cultivates its relationship with national courts. Specifically, it examines the reasoning and drafting style of the Court of Justice when it delivers a judgment that conflicts with the referring court’s view, as expressed in the order for reference, on how the questions ought to be resolved. The findings indicate that disagreement with the referring court affects the Court’s drafting and justification choices. In particular, the Article identifies two strategies that the Court resorts to when rejecting the view taken by a referring court: conflict avoidance and appeal to (illegitimate) authority. It is argued that these strategies are not conducive to furthering the judicial cooperation that the Court claims to be engaged in, nor to the legitimacy of its judgments within the Member States.

Keywords: preliminary reference procedure – Court of Justice – national courts – judicial dialogue – conflict avoidance – appeal to authority.

European Papers, Vol. 5, 2020, No 2, pp. 887-910
2499-8249 - doi: 10.15166/2499-8249/419

* Associate Professor of EU Law, University of Gothenburg, anna.ghavanini@law.gu.se.


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