Preliminary References to the Court of Justice of the European Union and Effective Judicial Protection

The preliminary reference procedure under Article 267 TFEU is the keystone of
the EU judicial system and its legal order. Based on a dialogue between the
Court of Justice and national courts, it is strictly linked to the protection
of the rights that individuals derive from EU law.

This book focuses on this procedure from the perspective of the right to
effective judicial protection, in light of Article 19(1), second subparagraph,
TEU and Article 47 of the Charter of Fundamental Rights of the EU. It explores
the level of protection that is ensured to individuals in order to access to
the Court of Justice through preliminary references on the validity of EU acts
and on the interpretation of EU law.

The book offers a threefold perspective on preliminary references, through an
analysis of the case law of the Court of Justice itself, of the European Court
of Human Rights in relation to Article 6(1) ECHR, and of the constitutional
courts of Austria, Croatia, Czech Republic, Germany, Slovakia, Slovenia, and
Spain, where the national courts’ refusals to refer can lead to the violation
of national constitutional rights. It further investigates the obligations for
Member States and national courts in the framework of the preliminary
reference procedure and how the right to effective judicial protection affects
them. The examination outlines the implications that could flow from the
recognition of a right for individuals to have a question referred to the ECJ,
as part of the right to effective judicial protection under EU law, in
particular its nature and its enforcement. Building upon the existing system
of sanctions for the violations of the obligation to submit a preliminary
question, the book advances some proposals to rethink the current system of
remedies.