In the Court We Trust: Cooperation, Coordination and Collaboration between the ECJ and Supreme Administrative Courts

Description

The preliminary reference procedure has long been envisaged as a judicial dialogue between the European Court of Justice and national courts. However, in reality the relationship appears to be closer to one of growing separation rather than to a happy marriage between equal partners. This book tries to find out: what is behind this? A study of the existing literature, combined with a case law analysis and interviews with judges, has shown that there are a number of important stumble blocks hindering the communication between these courts, such as language barriers, time constraints, and a failing digital infrastructure. However, on a deeper level there also appears to be a lack of mutual trust that prevents Supreme Administrative Courts from using the possibilities the procedure provides, such as the opportunity to offer provisional answers to the Court of Justice and the use of requests for clarification by the latter. Cover Half-title Series information Title page Copyright information Dedication Contents List of Figures Series Editors' Preface Preface 1 Why Don't We Talk? 1.1 Introduction 1.2 Focus on Supreme Administrative Courts 1.3 Dialogue Before, During and After the CJEU Decides 1.3.1 Dialogue Before Raising a Question 1.3.2 Dialogue During the Procedure Before the CJEU 1.3.3 Dialogue After the CJEU Has Ruled 1.4 Dialogue: Problem or Solution? 1.5 Checks and Balances in the Dialogue? 1.6 Why the CJEU Might Also Benefit from a Judicial Dialogue 1.7 Scientific Relevance 1.8 Outline and Approach 2 Dialogue as a Concept 2.1 Introduction 2.2 The Origins of the Dialogue Concept: Constitutional Conversations between Courts and Legislatures 2.3 The Purpose(s) of a Judicial Dialogue 2.4 Dialogues Between Courts: A Typology of Different Forms and Functions 2.4.1 Vertical Dialogues 2.4.2 Semi-Vertical Dialogues 2.4.3 Dialogues in Overlapping or Competing Jurisdictions 2.4.4 Dialogues Between Courts at the Same Level 2.4.5 The Dialogue Between Constitutional Courts and Supranational Courts 2.5 What Have We Learned? 2.6 Where Does the Preliminary Reference Procedure Fit In? 2.7 Future Challenges: The CJEU's Caseload 2.8 Conclusion 3 Case Law Analysis 3.1 Purpose of the Case Law Analysis 3.2 Research Design 3.2.1 The Sample 3.2.2 Does the Preliminary Question Invite a Response? 3.2.3 Gauweiler: Example of an Attempt to Dictate the Outcome of a Preliminary Ruling 3.2.4 Open or Closed Questions: A Matter of Trust? 3.2.5 Compatibility Questions 3.2.6 Linking Preliminary Questions to Provisional Answers from the Referring Court 3.3 What Does the Case Law Show Regarding Open, Binary and Compatibility Questions? 3.3.1 Binary or Open Questions? 3.3.2 Questions that Should Not Be Asked: Compatibility of National Law with EU Law 3.3.3 Provisional Answers 3.3.3.1 How Frequently Are Provisional Answers Being Offered? 3.3.3.2 Different Styles of Provisional Answers 3.4 How Does the CJEU Respond: What Sort of Answers Does It Provide? 3.4.1 Reformulating Preliminary Questions 3.4.2 The Case of Trijber and Harmsen: An Example of an Unsuccessful Interpretation of the Preliminary Question 3.4.3 Request for Clarification 3.4.4 Different Types of Answers From the CJEU 3.4.5 A Case Law Analysis into the Different Types of Responses by the CJEU 3.4.5.1 The CJEU's Response to Binary Questions 3.4.5.2 The CJEU's Response to Compliance Questions 3.4.5.3 The CJEU's Response to (Partly) Open Questions 3.4.6 The Responsiveness of The CJEU to Provisional Answers 3.5 Implementing the Decision of the CJEU 3.6 Conclusions 4 Results from the Interviews 4.1 Introduction 4.2 Interview Methodology 4.2.1 Individual, Semi-Structured and In-Depth Interviews 4.2.2 Selection of Interviewees 4.2.3 Representativeness of the Data 4.2.4 Openness of the Interviewees 4.2.5 Data Analysis: Three Stages in the Procedure with Different (Sub)themes 4.2.5.1 Does the Reference Leave Room for Debate? 4.2.5.2 The Proceedings before the CJEU: Opening the Black Box? 4.2.5.3 Acceptance or Disobedience of Preliminary Rulings 4.3 The Preparatory Stage 4.3.1 Dialogue with Other National Courts: No Vertical Dialogue without a Horizontal Dialogue? 4.3.1.1 Practicalities and Career Judges vs Parachuted Ones 4.3.1.2 The Infrastructure and Language of the Horizontal Dialogue 4.3.1.3 Informal Judicial Networks 4.3.1.4 Need for Hands-On Information Exchange and Learning 4.3.2 Providing Provisional Answers 4.3.2.1 Practical Reasons for Abstaining from Provisional Answers 4.3.2.2 Judicial Law Making Also a Role for National Courts 4.3.2.3 No Provisional Answers to Avoid Looking Biased 4.3.2.4 How Does the CJEU See Provisional Answers? 4.3.2.5 Non-Response by the CJEU 4.3.3 Risks Concerned with Leapfrogging 4.3.3.1 No Formal Procedures to Keep Lower Courts Aligned 4.3.3.2 Lower Courts Have the Right to Bypass Their Supreme Court 4.3.3.3 Informal Alignment in Spain 4.3.3.4 Specialized Judicial Networks 4.3.3.5 How Does the CJEU View Leapfrogging? 4.4 Dialogue during the Proceedings before the CJEU: Black Box or a Shared Responsibility? 4.4.1 Requests for Clarification 4.4.1.1 Do National Courts Feel the Need to Be Consulted Before Their Questions Are Reformulated? 4.4.1.2 Informal Requests to Clarify Questions without Hearing Litigants 4.4.1.3 How Does the CJEU Feel about Requests for Clarification? 4.4.2 Keeping the Referring Courts Updated about the Proceedings in Luxembourg 4.4.2.1 Informal Contacts between Referring Courts, CJEU Judges and AGs? 4.4.2.2 Other Means to Be Kept Informed 4.4.3 Referring Courts Playing a More Active Role in the Proceedings and Oral Hearings before the CJEU? 4.5 The Preliminary Decision and Its Follow-Up: Acceptance or Disobedience? 4.5.1 Useful Answers but Badly Motivated 4.5.1.1 What Explains the Lack of Discursiveness? 4.5.2 Autonomous Method of Law Making: Shifting from a Bottom-Up to a Top-Down Approach? 4.5.2.1 A Margin of Appreciation? 4.5.3 The Follow-Up of the Preliminary Decisions 4.6 To Dialogue or Not to Dialogue? 4.7 Conclusion 5 Trust and Dialogue 5.1 The Preliminary Reference Procedure as a Dialogue? 5.2 Dialogue Concept 5.3 Outline 5.4 Purpose of the Preliminary Reference Procedure 5.5 Different Aims of the Preliminary Reference Procedure May Require Different Forms of Cooperation and Communication 5.6 Dialogical Patterns Derived from Our Case Law Analysis and Interviews 5.6.1 Non-Use of Requests for Clarification before Reformulating Preliminary Questions 5.6.2 Provisional Answers and the Lack of Response from the CJEU 5.6.3 Compatibility Questions and Response from a 'Citizen's Court'? 5.6.4 Horizontal Dialogue between Highest Administrative Courts to Inform the CJEU 5.6.5 Vertical Dialogue: What do National Highest Courts Get in Return? 5.6.6 National Courts Totally Absent in the Procedure Before the CJEU 5.6.7 Dialogue after the CJEU Has Ruled 5.7 Dialogue and Trust 5.7.1 Different Expectations Concerning the ''Dialogue'' and the ''Purpose'' of the Preliminary Reference Procedure 5.7.2 Trust as a Non-Formal and Two-Sided Issue 5.7.3 Trust and the Style of Communication 5.7.4 Trust and Leapfrogging 5.7.5 Trust-Building and Another Type of Partnership 5.8 Conclusion 6 Conclusion and Future Scenarios 6.1 The Answer to Our Research Question 6.2 Why Keeping Up Appearances? 6.3 Three Possible Future Scenarios: Cooperation, Coordination and Collaboration 6.4 Scenario I: Strengthening Cooperation by Improving the Information Exchange 6.4.1 Full Text Publication of Preliminary References 6.4.2 Publication of Documents Concerning the CJEU Proceedings 6.4.3 An ACA Service to Improve the Horizontal Information Exchange? 6.5 Scenario II: Coordination via More Formalized Communication Channels 6.5.1 Interacting through Provisional Answers 6.5.1.1 Origins of the Idea of Provisional Answers 6.5.1.2 Providing Provisional Answers 6.5.1.3 Responding to Provisional Answers 6.5.2 Launching Requests for Clarification 6.5.3 Supreme Courts Acting as Amici Curiae in Proceedings before the CJEU 6.6 Scenario III: Collaboration Between the CJEU and Supreme Courts 6.6.1 Supreme Courts as Relay Stations 6.6.2 Towards a Decentralized Decision-Making Model 6.7 The Future Index Introductory Note