Multilevel judicial protection in the EU and preliminary references

In: Common Market Law Review, Band 53, Heft 3, S. 679-707

Abstract

The article offers a threefold perspective on preliminary references to the ECJ, through an analysis of the case law of the ECJ itself, of (some) constitutional courts and of the ECtHR. Although in the latter two cases, a close connection is made between preliminary references and the right to effective judicial protection, in the EU legal order they are conceived as a "dialogue between judges". The article looks at their role in light of recent case law concerning this procedure as well as Article 47 of the Charter and Article 19(1)(2) TEU. It aims to identify whether and to what extent preliminary references may be covered by the right to effective judicial protection under EU law. It argues that the preliminary reference procedure may be linked more closely to individuals' rights if analysed in light of Article 47 of the Charter. Accordingly, some proposals for a more "protection-oriented" system are presented.