Constitutional Courts and Preliminary References to the CJEU: Beyond Impressions

It used to be claimed that the central position of national constitutional courts (‘CCs’) has been hindered by the development of the complex judicial system of the EU. Due to the primacy principle and the doctrine of direct effect all ordinary courts alone are empowered to refuse the application of domestic legal measures which are not compatible with EU law. Moreover, according to Art. 267 TFEU national courts may refer a question on the interpretation or the validity of EU law to the Court of Justice of the European Union. The ‘judicial empowerment theory’ asserts that such development enabled the ordinary courts to emancipate from the higher courts within their national judicial systems. Nevertheless, recently it has been suggested that higher courts, in turn, begun to reassert their central positions by engaging in the dialogue with the CJEU through the preliminary reference procedure while displacing ordinary courts of the first instance as the CJEU’s most essential interlocutors. The existing research relating to CCs and EU law focuses mainly on the theory of constitutional pluralism or the theory of judicial dialogue between the CJEU and CCs. Even though the two narratives stem from an intuition which is in itself hardly disputable, they do not elucidate what the interactions amount to in practice. The pitfall of the scholarly debate is that the research focuses either on the examination of the most prominent examples of CCs’ backlash against the CJEU or on the descriptive analysis of the individual approaches of CCs. No comprehensive attempt has been made in order to examine the real state of a judicial dialogue between CCs and the CJEU through preliminary reference procedure empirically. The proposed article aims to address these gaps in legal and political literature and elucidate the position of CCs within the EU judicial system. The central message of the article is rather minimalistic: We should now look beyond traditional narratives which uncritically glorify the idea of limitless judicial dialogue on the one hand, and which dramatically alert to catastrophic judicial backlash on the other hand. Let us search for comprehensive evidence of judicial behaviour instead. To these ends, the study seeks to examine the integrating potential of preliminary questions posed by CCs. The article will firstly clarify how CCs ask preliminary questions. In particular, it will be assessed whether CCs provide the CJEU with a specific constitutional context or whether they act like ‘ordinary’ EU courts. Secondly, the reactions of the CJEU will be analysed. In this regard, it will be assessed whether the CJEU responds to the CCs’ concerns in a different manner than to those of other EU courts. Using an original data set consisting of all preliminary references posted by CCs between the years of 1952 and 2020 (est. n=50) as well as the follow-up AG’s opinions and CJEU’s rulings, an analysis combining quantitative and qualitative methods will be conducted. Such an analysis should provide a detailed insight into the relationship between CCs and the CJEU.