The preliminary reference procedure laid down in Article 267 TFEU is often considered the crown jewel of the Union judicial structure. These rules afford significant powers, most notably the decisions as to whether and when to request a ruling, to national courts. As has been famously pointed out by Karen Alter, if national courts suspect that their questions will be misused by the CJEU, they will resort to withholding questions. Securing the continued trust of national courts is thus a necessity for the continued functioning of the preliminary reference procedure, and by extension for the Court’s position in the EU institutional structure. Against this backdrop, the paper examines the CJEU’s rulings from the referring courts’ perspective. Relying on a unique dataset of 193 orders for references and the 160 judgments they gave rise to, it offers empirically grounded insight into the CJEU’s efforts to gain and preserve the trust of its interlocutors within the Member State judiciaries.
This paper detects signs of trust and distrust in the relationship between the CJEU and the constitutional courts of the EU Member States, using their case law on the Charter of Fundamental Rights as a case study. In the early days of the Charter, the CJEU affirmed that the Charter did not affect the primacy of EU law over domestic constitutional law. However, recent case law demonstrates that the CJEU now shows considerable trust in national fundamental rights protection. In its preliminary rulings, the CJEU tends to defer the final step of the fundamental rights review to the referring court. Moreover, it has allowed the Italian Constitutional Court to apply a higher national standard of fundamental rights protection in MAS. This increased trust is mirrored by domestic constitutional courts, even by those that are traditionally very defensive of national fundamental rights protection, such as the Italian Constitutional Court and the German Federal Constitutional Court.
Trust and expertise are closely intertwined in the EU. While EU institutions rely heavily on expert advice in policy drafting and implementation, such reliance on expertise has historically failed to win European citizens’ trust. EU risk regulation provides several examples in these respects. It is suggested that courts can play a role in enhancing citizens’ trust in regulatory expertise, by holding institutions to account for how they use science when regulating risks. The paper offers a cross-sectoral analysis of the CJEU’s case law in three areas of risk regulation (food safety, chemicals, medicines). Given that each entails different constellations of interests and actors, the paper seeks to clarify if and how these variations affect the CJEU’s reasoning. It maps the actors who initiated litigation and the legal grounds they invoked and assesses whether any context-dependent patterns are identifiable in the CJEU’s reasoning or whether the Court follows a one-size-fits-all approach.
The creation of a European asylum policy carried the potential for the CJEU to shape EU asylum, and international refugee law, and to enforce refugees’ rights. Strict procedural rules on direct access circumscribe this potential. The CJEU comes into the picture indirectly, influencing member state practice through its authoritative interpretation of the EU asylum acquis. Its asylum case-law arguably has global reach as international refugee law lacks an international judicial instance, and a global level monitoring mechanism delivering opinions in individual cases. Against this backdrop, I focus on three strands of CJEU’s asylum case-law: qualification for international protection; responsibility-allocation for examining asylum claims; and asylum procedures. I critically assess the CJEU’s contribution to international refugee law; the ways it has shaped national procedural autonomy; and its establishment of duties flowing from and limitations of the principle of mutual trust.
The extraterritorial application of EU data protection law is welcomed by many as enhancing individuals’ trust as to the protection of their data in a globalized world. However, there is considerable diversity internationally about the appropriate balance between data protection and privacy on the one hand and freedom of expression and information on the other. Unilaterally determining this balance can jeopardize the trust of external actors in the EU’s commitment to transparency and free movement of data. Within this context, the paper analyses CJEU cases that have enabled the extraterritorial reach of EU law and a recent attempt to limit it as regards the right to be forgotten. The constraining approach may partly restore external trust, but also raises questions about the EU’s promise to protect privacy rights against tech giants thus undermining individuals’ trust. Trust is thus multi-dimensional and the CJEU plays a key role in enhancing and breaking trust at different fronts.