The central question pervading this discussion is simply stated: whether and to what extent the European Court of Justice (“Court of Justice” or “Court”) (and the European institutions more generally) can count on the courts of the Member States to perform their judicial tasks in ways that are faithful to the ground rules of European Union (“EU”) law, be those rules substantive or procedural in character. Looking back over the past five decades, I am struck by the succession of different forms this question of national court “fidelity” to Community law, for lack of a better term, has taken. (The quoted term is meant to evoke precisely the general duty of loyal cooperation *526 imposed on Member States under Article 10 of the current EC Treaty.) I would suggest that we have witnessed essentially three generations of such “fidelity challenges.” In the early years, the fidelity challenge--or “infidelity risk,” if you prefer--ran something like this: Will national courts accept and conform to the Grundnorms of European constitutional law, that is to say, the principles of supremacy and direct effect expounded by the Court of Justice? Or, to take a second example, will national courts genuinely make preliminary references to the Court of Justice in accordance with the criteria for the making of preliminary references that have been established in the Treaty and in the case law of the Court? Considering the indispensable role that preliminary references and preliminary rulings play in the development of EU law, the importance of these ground rules should not be underestimated.
George A. Bermann,
New Frontiers in the Relationship Between National and European Courts,
32 Fordham Int'l L.J. 525
Available at: http://ir.lawnet.fordham.edu/ilj/vol32/iss2/4