National Courts Proposing Answers to the Questions Referred for Preliminary Ruling

Abstract

In the preliminary ruling procedure under Article 267 TFEU, national courts refer questions of interpretation of EU law to the Court of Justice of the EU. At times, national courts not only ask questions but immediately propose answers to those questions. Recently, this kind of behaviour of national courts has attracted increased scholarly attention. In this article, I focus on these situations in two aspects. First, I analyse a selected set of references for preliminary ruling received by the Court of Justice between 2018 and 2020 to see how often the Court gets to the same answers to the referred questions as proposed by national courts. Second, I reflect on the factors that could make an impact on this practice. Among them are judicial resources and specialisation in EU law-related matters on the one hand, and values and interests that are promoted by specific answers on the other. More specifically, it appears that when national courts take into consideration and invoke most or all relevant arguments, as well as when they propose integrationist outcomes, the Court of Justice tends to reach the same answers they suggest. These observations in the end lead to a number of important questions about the national courts’ enforcement and interpretation of EU law and the viability of their role of “EU courts” more broadly.