Knocking on Heaven's Door: Fragmentation, Efficiency and Definance in the Preliminary Reference Procedure
Posted: 24 Oct 2002
Abstract
In the process towards European constitutional rediscovery, set in motion by the Treaty of Rome, Article 177 (now 234) has been by far the most important instrument of change. By providing the meeting point for the Community and the national legal orders, it has enabled the ECJ, more than any other jurisdictional provision, to define its mandate, establish the Anew legal order, and develop constitutional doctrine. This article discusses the evolution of the preliminary reference procedure and its adjustment to the constitutional pluralism of the Union; it examines selectively the case law on Article 234 in the period between 1998 and the first half of 2002; and assesses trends in the use of preliminary references by national courts. It is divided as follows. The first part traces the development of the preliminary reference procedure. The second part discusses demand and supply for references and the measures chosen to address the mounting increase in the Court's case law. The article then turns to examine recent case-law in three areas: the control of admissibility of references; the definition of court or tribunal; and the jurisdiction of the ECJ to interpret Community measures where they apply by virtue of national law. The next section discusses varying perceptions of the preliminary reference procedure by national courts. The final parts contains concluding remarks.
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