Wpływ procesu integracji europejskiej na krajowe organy sądowe

Abstract

National courts of the member states have an obligation to apply correctly the law of the European Union and to effectively protect the rights which the latter confers upon individuals. According to the established case law of the Court of Justice of the European Union (ECJ), an individual has the right to expect that it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case the need for a preliminary ruling, regardless of the existence of a rule of national law whereby a court is bound on points of law by the rulings of a superior court.However, provisions of domestic law may complicate the use of preliminary ruling procedure by national courts. Those problems may deal with, firstly, relations between lower and higher courts and, secondly, with relations between ordinary or administrative courts and constitutional courts.As far as the first problem is concerned, the appellate court cannot prevent the referring court from exercising the right to make a reference to the ECJ, by varying the order for reference, by setting it aside and by ordering the referring court to resume the proceedings.As for the second problem, the deferral by the national constitutional court of the date on which the provisions of domestic law at issue will lose their binding force does not prevent the referring court from respecting the principle of the primacy of the union law and from declining to apply those provisions in the proceedings before it, if the court holds those provisions to be contrary to the law of the Union.The Treaties leave open the question whether constitutional court is the court or tribunal authorized (or obliged) to make preliminary reference to ECJ. However, constitutional courts are bodies established by law, they are permanent and they apply rules of law. That is why it would be consistent with the idea of judicial cooperation in the European legal space to accept their capacity to make preliminary references to the ECJ in the process of constitutional adjudication.