Cotter, J ORCID: https://orcid.org/0000-0003-1285-0937 and Butler, G (2020) Just Say No! Appeals Against Orders for a Preliminary Reference. European Public Law, 26 (3). pp. 615-642.

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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.

Item Type: Article
Additional Information: The final version of this accepted manuscript can be found online with all relevant information at; https://kluwerlawonline.com/journalarticle/European+Public+Law/26.3/EURO2020058
Uncontrolled Keywords: National courts, Court of Justice of the European Union, Preliminary reference procedure, national procedural autonomy, Appeals, Appellate courts
Subjects: J Political Science > JN Political institutions (Europe)
J Political Science > JX International law
K Law > K Law (General)
K Law > KZ Law of Nations
Divisions: Faculty of Humanities and Social Sciences > School of Law
Depositing User: Symplectic
Date Deposited: 17 Dec 2020 11:52
Last Modified: 17 Jun 2021 01:30
URI: https://eprints.keele.ac.uk/id/eprint/9031

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