‘Open sesame!’: Improving access to the ECJ by requiring national courts to reason their refusals to refer

Abstract

The European Court of Human Rights ( ECtHR) considered the failure of the highest Italian court to provide a statement of reasons for its refusal to request a preliminary ruling from the European Court of Justice ( ECJ) to constitute a violation of article 6 ECHR in Dhahbi and Schipani.

These judgments have been criticised for changing the nature of the preliminary reference procedure from a mechanism of inter-judicial co-operation to a mechanism safeguarding the individual right to a fair trial.

This article argues that these fears are somewhat exaggerated since the ECJ and national courts have also scrutinised the preliminary reference procedure under an individual fundamental rights-based approach. What is more problematic, however, is the inconsistent approach of the ECtHR.

The ECJ should therefore provide guidance to national courts what their obligations are if they refuse to refer. This all the more given that the preliminary reference procedure shows significant shortcomings from the point of view of effective judicial protection.

Sweet and Maxwell: European Law Review http://www.sweetandmaxwell.co.uk/catalogue/productdetails.aspx?recordid=427&productid=6968

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