The Role of National Courts in the Judicial Review of European Union Law: Engagement in the Preliminary Ruling Procedure

Judicial review understood as legal control of validity of legislation exercised by courts is “essential to the legitimation of administrative governance, i.e. the various forms of regulatory power (…)”. (Lindseth 2019). Importantly, the system of judicial review constitutes a key component of the EU’s legal system, necessary for the optimal functioning of the rule of law as enshrined by Article 2 TEU, and the protection of fundamental rights within the EU. At the heart of this judicial review system is the Court of Justice of the European Union which, on basis of Article 263 TFEU, is tasked with overseeing the legality of EU (legislative) acts. However, the stringent conditions outlined in Article 263 TFEU that non-privileged applicants such as individuals, NGOs or economic entities must meet in order to get access to the Court have been interpreted very narrowly, hindering individuals from seeking judicial review of EU acts at the EU level. Despite the massive critique, the Court argues that there is a complete system of judicial review in the EU and if direct access under article 263 TFEU is not possible, then the EU legal system offers alternative legal remedies, such as the preliminary ruling procedure under article 267 TFEU. This mechanism of judicial dialogue allows national courts of the Member States to refer questions regarding the validity of EU acts to the CJEU, providing a different avenue for legal challenges. In practice, it means that if private party can’t meet the access criteria of article 263 TFEU, she should challenge the national decision that is based on the concerned piece of EU law at the national level, i.e. in the national court. The national court, in turn, shall refer a preliminary question under article 267 TFEU concerning the validity of the challenged EU act to the Court of Justice. The pivotal inquiry that emerges is the extent to which national courts actually utilize the preliminary ruling procedure as a mechanism to contest the validity of EU law and engage in judicial dialogue with the CJEU, and if so, in which specific matters? Consequently, to what extent the alleged alternative route through the national court and article 267 TFEU offers an (effective) alternative to the direct challenge under article 263 TFEU? This paper aims at providing a nuanced picture of how the alternative avenue of judicial redress through the preliminary ruling procedure is used in practice. This study involves a comprehensive analysis of ECJ judgments in response to preliminary questions submitted by courts from eight EU member states: Bulgaria, Belgium, Germany, Italy, the Netherlands, Poland, Slovenia, and Sweden. This legal analysis is complemented by data obtained from semi-structured interviews with judges from national courts.