3 - Case Law Analysis

Summary

Our case law analysis reveals that and how it takes two to tango in terms of organizing a dialogue. From the side of the referring courts closed-questions may force the CJEU to yes or no answers. The same holds true for compatibility questions asking the Court where a national laws are in compliance with EU law while the procedure is not meant to “solve” these problems. A positive way to stimulate dialogue with the CJEU by the referring court could be to make use of the possibility to offer provisional answers to the questions being referred. However, this only works when the CJEU explicitly responds to these answers. The CJEU can also discourage dialogue by reformulating questions in a way that makes the legal problem become unrecognizable to the referring court without issuing a request to the referring court to clarify the questions first. With respect to compatibility questions, the CJEU sometimes almost seems to operate as an appellate court trying to protect citizen’s right by taking over the responsibility of national courts. At the same time, though, the Court shows little interest in what happens with preliminary rulings in the aftermath of its decision.