PRELIMINARY REFERENCE PROCEDURE: SOME HISTORICAL LESSONS
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The article recalls the significance of a preliminary reference procedure within the European integration process and, in particular, its role for representation of the individual’s interests before the European Union’s judiciary. The author identifies the main problem - a gap in legal protection exists when a national court does not share a party’s conviction that a preliminary reference on a question of the European Union law is necessary to reach a decision, even if the court is under the duty to address the Court of Justice. Hence, the target of the research is to explore whether there have historically been any legal remedies to safeguard the individual’s interests, when the issue of addressing the court of Luxembourg is at stake. The author primarily uses historical and comparative methods to deal with the question. Being said that, the author addresses the origins of a preliminary reference procedure, including the role of Germany as the only Baltic Sea Region country forming the first stone of the European Union, i.e., the Treaty establishing the European Coal and Steel Community, and, respectively, the scope of a preliminary reference procedure. The main part of the article is devoted to the analysis of the procedure under Article 33, Article 35 and Article 88 of the Treaty establishing the European Coal and Steel Community permitting the undertakings and their associations to complain to the Court of Justice regarding a violation of the duty to make a preliminary reference. The author identifies the legal ground and prerequisites the appeal for a failure to request a preliminary reference to be admissible. Although never applied in the practise, such historically existing legal remedy made a mechanism to control the national judge’s decision not to make a preliminary reference, while the existing European Union’s treaties lack such possibility.
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