Judges apply European Union law as an essential part of national law of the Member States. They have primary and standard jurisdiction for the application of Union law, but they are also required to cooperate with the judges from the Court of Luxembourg for the preservation of legal unity by ensuring the uniform interpretation and application of Union law.
In this manner, legal redress for the individual is safeguarded and further development of EU law is guaranteed through the means of the preliminary ruling procedure. The preliminary ruling procedure consists of interlocutory proceedings, in which the national judge – not the individual – refers a question regarding Union law application to the Court of Justice of the European Union (CJEU), which gives judgment independently of the pending national case. I will attempt to make a brief and chronological analysis of the issues raised by the procedure’s development over time and respectively propose a series of alternative solutions, aiming at outlining the specific of the institution at stake.
In the early days of its existence, the procedure, despite being regarded as 'the jewel in the Crown of the CJEU’s jurisdiction' (Craig, 2009, p.576), a stroke of genius of the EU’s legal system, presented itself essentially like a paradox, being altogether unpopular. The Court had to encourage the increase in number of referred cases through the establishment of a rather broad definition for the competency of national courts to refer a matter and deliberately refraining from appreciating a question’s pertinence. This attitude has been so effective that over the years, the preliminary ruling procedure became a possible victim of its own success, in it laying 'the roots of future danger' (Norberg, 2005, p.18). But in order to refrain from further instilling undesirable skepticism related to the subject (Şandru, Banu, Călin, 2013), it should in my opinion only be noted that a series of problems unequivocally exist in what it is concerned: firstly, the increased workload of the Court, secondly, the problems relating to the actual proceedings and lastly, the problem of remedying breaches against the obligation of national judges to refer a case to the CJEU.
Regarding the most notorious problem – the increased caseload facing the Court – I must stress upon the fact that the number of references brought before it has increased drastically over the years: from 10 cases in 1954, 102 in 1974, 344 in 1994 to 531 in 2004 (Annual Report of the CJEU, 2013, p.91-110). This led to a number of problems including, according to Weiler (1987, p. 368), the risk of lower quality of the rulings and of dilution of their normative effect, meaning that the Court was prone to compromising on quality since it had less time to thoroughly analyse every reference and that the inflation in cases made each ruling less likely to become a relevant legal precedent.
Furthermore, criticism from its own Advocate General, Ruiz-Jarabo Colomer, in case C-17/00 François De Coster v. Collège des bourgmestre et échevins de Watermael-Boitsfort stated that the CJEU produces too flexible and not sufficiently consistent case-law, with the lack of legal certainty which that entails and such vague outlines that a question referred for a preliminary ruling by Sancho Panza as governor of the island of Barataria would be accepted. Bordering the absurd, the example stands and touches on the procedural problem also, considering that what we measure it against is nothing else than the original purpose itself - the obligation of the CJEU to ensure the uniformity of the EU law- a goal situated as far away as possible from the arbitrary. In fact, it has long been emphasised by the doctrine (D. O’Keeffe, 1998, p.509) that the spirit of the preliminary ruling procedure has been tempered with by the ever-changing distribution of coordinates in cooperation. On the other hand, given that the issue concerns a rather young, unique and expanding structure such as the European Union, a search for optimal judicial architecture seems to me opportune, if not mandatory, and time has shown a clear evolution towards predictability and specificity. It was only natural that it would be so too, since the growth of the list enumerating the Union’s domains of competence paralleled territorial expansion and the more the legislation, the greater the number of issues raised by its application. From this perspective, a stagnation appears to be the most likely scenario, considering the relatively small number of states remaining yet unattached, but more importantly the fact that every preliminary ruling equals one less issue to solve in the future.
And still, the problem remains that the time it takes for the Court to give a ruling could allegedly lead to a breach of the right to a fair trial, as established by Article 6 of the European Convention of Human Rights (ECHR). In fact, such was the case with Greece, on trial for national proceedings still pending after eleven years, due to, among others, a reference to the CJEU prolonging the case by two years and seven months. While the ECtHR understandably refrained from it (being in a more or less similar conundrum), one can undoubtedly argue that this points to the gravity of the problem for individuals, re-emphasising the legal maxim 'justice delayed is justice denied'.
In 2013 however, the CJEU announced in its report a number of 450 such rulings, with a medium duration for the proceeding extending up to 16.3 months. This was achieved primarily through the enhancements in the inner workings of the Court, consisting of the possibility to dispense of the oral phase, the simplified, accelerated, and urgent procedures, the possibility of ruling without the conclusions of the Advocate General, introduced by the Nice Treaty, as well as the introduction of the Court of First Instance (CFI) which has (limited) procedural jurisdiction in the procedure. Aside from the observation that all of these appear to be Union-level measures, more obvious ones such as increasing the number of judges, creating specialised departments for the domains that the Union aims at regulating, following a long-standing tradition of extracting institutions from the member states’ legal order and, in turn, training national judges more efficiently in the spirit of the EU legislation should in my view be found at the top of the list. An interesting suggestion presented in two important papers prior to the Nice Treaty, the 'Courts’ paper' and the 'Due Report', was to give greater 'docket-control' for the CJUE (control over the official list of proceedings pending, similar to how the ECHR is currently coping with the impossibly large number of cases) to decide which cases to take on.
While it becomes evident that not much has been done at national level, another gap in legal protection arguably exists when a national court does not share a party's conviction that a preliminary reference on a question of Community law is necessary to reach a decision. The discussions on legal policy, primarily among practicing lawyers, have as a main topic the right of individuals to bring a matter before the CJUE, a right based on the effective legal protection. In a number of Member States it is also an objective breach of internal (administrative) law. The Romanian legal system offers the specific means of admission of the motion for revision. To date, it is worth mentioning however that the infringement has remained of little or no practical significance and it therefore becomes debatable whether the problem should not rather be handled prior to this stage. As far as I am concerned, what it all essentially amounts to is stopping the questions from arising, and that becomes a problem of clarification of legal texts and their understanding. Rather than using a coercive method and enforcing legal redress (by making it an object of positive EU law), a re-statement of advantages and values that brought the member states together would benefit the Union not only as an anti-euroskepticism move, but also as a reminder of the obligations implied when signing the treaty.
To conclude, this dichotomous representation of both problems and solutions, stemming from the fact that the preliminary ruling procedure, an important yet not central element of integration (Fahey, 2007), was created on the basis of descentralisation, could perhaps be bridged by professing and acquiring an enhanced general view on the workings of the European Union, striving both ways towards achieving coherence.