Power Talk: Effects of Inter-Court Disagreement on Legal Reasoning in the Preliminary Reference Procedure

Recent cases of national court rebellion against the rulings of the Court of Justice have raised questions about the meaning of judicial cooperation within the preliminary reference procedure. Although tensions are inevitable, the trust of Member State judiciaries is crucial for the dissemination and enforcement of the Court’s rulings. This paper uses legal empirical method to study how the Court cultivates its relationship with national courts, with a specific focus on rulings that conflict with the referring courts’ view on how the questions ought to be resolved. The findings indicate that disagreement with the referring court affects the Court’s drafting and justification choices. The paper identifies two strategies that the Court resorts to when rejecting the view taken by a referring court: conflict avoidance and appeal to (illegitimate) authority. It is argued that these strategies are not conducive to furthering the judicial cooperation that the Court claims to be engaged in.