8.6.3 National courts as Union courts

445. In the decentralised system of justice, national courts fulfil a crucial role in the effective legal protection of rights that Union law confers upon private parties. In that sense, by ensuring that legal protection of Union rights, national courts are Union courts.1 The mutual exchange or dialogue between the Court of Justice and national courts is essential for the construction of a coherent system of rights, remedies and procedures in the realm of Union law that deals with horizontal legal relationships and private law matters.2 National courts, supported by the parties to the case, must find appropriate remedies for infringements of Union law in domestic law. Subsequently, they must assess whether those national remedies are compatible with the standards for effective judicial protection as dictated by Union law – particularly the Court of Justice3. If necessary, the national court must upgrade or reshape the national remedy to a remedy that is Union-proof.4 When it is unclear how a certain standard in Union law must be interpreted or when a national court questions an earlier ruling of the Court of Justice, the national court can, with permission of the parties to the case, decide to bring a preliminary procedure so that the Court of Justice can provide clarification and guidance.5

In such a preliminary procedure, besides questions of subsidiarity and proportionality, the Court of Justice in any case has to make the best of its answer with the information it receives about the particular case and the potential implications of possible answers. Consequently, when it lacks crucial information on for example horizontal implications of potential interpretations of Union law, the Court of Justice can hardly be blamed for not taking such implications into account – that is, insofar as they are not patently obvious. Therefore, national courts that submit a reference for preliminary proceedings to the Court of Justice have the important task to provide the Court of Justice with the relevant information the Court needs to assess the probable implications of its ruling. When referring preliminary questions, national courts must be encouraged to give insight into the instruments they have available under domestic law as well as what the objectives and implications of those instruments are.6 In addition, national governments that submit observations to the Court of Justice must provide for adequate information on the probable implications of potential answers of the Court of Justice to the questions posed. The more comprehensive the picture the Court has, the more it can attune its ruling and reasoning to it. It is only in this way that a true mutual exchange can take place. From the case law of the Court and the responses to it,7 it becomes clear that much has still to be done for the judicial dialogue to take shape.8 One of the challenges lies in how referring courts can be both stimulated and supported to provide the relevant information to the Court of Justice. This challenge has both practical and political components and it goes beyond the scope and purposes of this book to elaborate on this issue.