5 - Trust and Dialogue

Summary

Drawing up the balance from the literature, case law, and interviews, one must conclude the communication between courts in the preliminary reference procedure does not represent a dialogue going (much) beyond one side asking questions, while the other side tries to answers them. Procedural mechanisms in the procedure that could enhance cooperation and communication are scarcely used to facilitate co-actorship. There are not only practical reasons for this. The lack of dialogue also partly results from a lack of faith in each other’s competence, reliability, and intentions. CJEU judges sometimes lack faith in the competence and reliability of national highest courts and do not seem to believe in the idea that national highest courts could actually provide an authoritative opinion about the correct interpretation or validity of EU law. Judges from Supreme Administrative Courts, on the other hand, are sometimes frustrated that the CJEU does not seem willing to listen to their explanation of the facts of a case, to their concerns about the potential consequences of preliminary rulings and to their views on how EU law should be interpreted. Few judges, however, seem to feel the need to openly express their discomfort, because it could also make things worse.