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Just Say No! Appeals Against Orders for a Preliminary Reference

Cotter, John

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Abstract

Can an order for a preliminary reference to the Court of Justice of the European Union (the Court), made by a lower instance national court, be subject to an appeal to a higher instance national court? To date, the Court has not been sufficiently clear on an answer to this exact question. The Court’s Cartesio judgment mandated that national law could not permit a higher instance national court from varying an order for reference, setting aside an order for reference, or ordering the resumption of national proceedings whilst awaiting the return of the preliminary reference. However, the Court did not say that appeals against an order for reference, more generally, were incompatible, per se, with Union law. This article contends that such breadth given to higher instance national courts is contrary to the intent of Article 267 TFEU, which aims to ensure effective judicial dialogue between all national courts and the Court, uninterrupted by national law and practice. This article makes the case for ending this regime of undue deference to national procedural autonomy on this question, which is problematic in circumstances where the rule of law and judicial independence in all Member States cannot be assumed.

Citation

Cotter, J. (2020). Just Say No! Appeals Against Orders for a Preliminary Reference. European Public Law, 26(3), 615-642. https://doi.org/10.54648/euro2020058

Journal Article Type Article
Acceptance Date Dec 17, 2020
Publication Date Dec 17, 2020
Journal European Public Law
Print ISSN 1354-3725
Publisher Kluwer Law International
Peer Reviewed Peer Reviewed
Volume 26
Issue 3
Pages 615-642
DOI https://doi.org/10.54648/euro2020058
Keywords National courts, Court of Justice of the European Union, Preliminary reference procedure, national procedural autonomy, Appeals, Appellate courts
Public URL https://keele-repository.worktribe.com/output/418898
Publisher URL https://kluwerlawonline.com/journalarticle/European+Public+Law/26.3/EURO2020058

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