The EU Courts as “national” courts: National law in the EU judicial process

Abstract:

This article examines the situations in which the laws of the Member States are relevant before the European courts. The presence of national law in the EU judicial process raises a series of questions linked to its legal status.

In order to assess whether the current answers to such questions are appropriate, the article underlines that national law fulfils a variety of functions in the EU judicial process, ranging from the role of a question of law, when it constitutes the rule applied by the EU Courts, to the role of a question of fact when its compatibility with EU law is at stake.

It is then observed that while it is appropriate that national law be accorded the legal status of a question of fact in circumstances in which it serves such a function, its legal status should be closer to the one of a question of law whenever it constitutes the rule that the EU Courts apply.