Developing EU law through preliminary rulings: The role of national courts

The preliminary ruling procedure has played and continues to play an exceptionally large part in advancing EU legal harmonization and integration. While the Court of Justice’s importance for this development is undisputed, the role of the referring courts is debated. This article examines whether the preliminary reference procedure provides national courts with a possibility to influence the development of EU law through the drafting of orders for reference. Based on a systematic study of 192 orders for reference and the 159 judgments they yielded, the article shows that while referring courts can to some extent affect the outcome in an individual case, the Court shows little or no interest in the legal thinking of its national colleagues and appears to develop its own reasoning entirely independently of the input provided by referring courts. This attitude is largely endorsed by the Statute of the Court, which prescribes a less prominent role for the referring court than for, inter alia, the Commission and the Member State governments. Nevertheless, the article argues that an endeavour to explicitly and transparently address the arguments raised by referring courts would increase the persuasiveness of the Court’s judgments. This would improve the Court’s often criticized reasoning style, strengthen the judicial nature of the procedure and make for more illuminating rulings that in the long run could pave the way for the Court to graduate into a new role as a European court of precedent.