Preliminary rulings – a mechanism in need of repair?

Abstract

This article takes the perspective of the national judge on the issues of preliminary rulings. It will partly draw on reflections stemming from more recent cases on the duty to refer cases before a national court to the Court of Justice of the European Union (CJEU). However, it will also take into account some factors particular to the role of a national court to the debate as well as comment on recent developments in one specific national court, namely the German Constitutional Court, BVerfG.
The article is divided into the following parts 1) an introductory part on union law in general, 2) a part on the tensions within the system of preliminary rulings according to article 267 of the Treaty of the Functioning of the European Union (TFEU), the leading case on the interpretation of that article, CILFIT, and the more recent case Commission v. France from 2018, 3) a part concerning the difference between interpretation and application of union law from a national perspective and – lastly – 4) a part on the possible need for new guidance on how national courts of last instance should understand the duty to refer in article 267, especially in the light of the decision of the BVerfG in May 2020, finding a preliminary ruling from CJEU ultra vires and therefore of no legal effect in Germany.