Can two walk together, except they be agreed? : preliminary references and (the erosion of) national procedural autonomy

Abstract

The Court of Justice’s case law on procedures and remedies before national courts has been highly scrutinised and often criticised, in particular for intruding on the procedural autonomy of the Member States. This article argues that the responsibility for such a development lies at least partially with the national courts. Drawing on an empirical analysis as well as in-depth case studies, the article shows that national courts requesting preliminary references from the Court often actively seek an answer promoting European integration over national autonomy. Furthermore, the analysis suggests that, when a national court assertively argues for the preservation of national procedural rules, it has a comparatively good chance of persuading the Court of Justice. The article concludes that there is still a case to be made for national procedural autonomy, but the success of that case depends upon the national courts’ use of the preliminary reference procedure.