Rechtsprechung ohne Fall

The preliminary ruling procedure according to Art. 267 TFEU has – since its introduction in the Treaties of Rome – remained without significant institutional reforms. As an instrument intertwining EU and domestic legal and judicial systems, it has been an important transmission belt of European integration. As such, the referral procedure generally enjoys a good reputation among legal scholars. If at all, institutional criticism focuses on the lack of enforceable individual access to the ECJ that comes with the preliminary ruling mechanism. This criticism is more concerned with insufficient individual rights protection than with systemic weaknesses of the procedure. Contrary to this more prevalent type of criticism, the article focuses on a conceptual characteristic of the preliminary ruling procedure that is increasingly proving to be a fundamental design flaw as integration progresses: Preliminary rulings produce a large body of case law without any cases. This leads to a deficient overall process of judicial concretization and development of EU law and, in part, to a shift in the constitutional balance of powers. At the same time, the referral mechanism is likely to alienate national courts from EU law, because they do not have to and are not allowed to treat it with the same degree of sovereignty and independence as they may treat domestic law. The referral mechanism thus turns from an instrument of integration into a disintegrating factor. A court decision based on Union law is procedurally more burdensome, more susceptible to annulment and less self-determined than one based on domestic law. Pragmatic Member State courts have considerable incentives to avoid deciding issues of Union law and to generally to shy away from them. Consequently, unresolved and urgent questions of EU law – such as those that are legion under the GDPR – are at best addressed in the abstract by preliminary rulings or entirely bypassed by judicial distinguishing, by working the facts of the case, or by taking refuge to EU law-compatible doctrines of domestic law. In the absence of a ruling bearing on the facts of the case, the significance and factual basis of the ECJ's preliminary rulings remain vague and are left to the interpretation by the referring court and other courts in the Member States. The unavoidable leap from the ECJ's abstract preliminary ruling to deciding a case at hand leaves ample room for eager over-interpretation or skeptical under-fulfillment, depending on the deciding court's attitude towards Union law and the protective purposes of the EU legislation at issue. All this inhibits and unsettles the judicial task of spelling out abstract statutory law in and on the basis of concrete cases and controversies. As a consequence, the courts are withdrawing and opening up space for other forms and venues in which law is being authoritatively interpreted and developed. In current practice, independent administrative authorities such as data protection commissioners, who are not subject to political supervision, are stepping into the breach. Thereby, the authoritative application and development of legal standards – at least in the first instance – shifts away from the judiciary and toward actors who do not follow a similarly formal and strict procedural and argumentative framework. If one considers incremental judicial interpretation and development of the law on the basis of cases to be a strategy that promotes rationality and creates legitimacy, this development is highly problematic and potentially dysfunctional. However, these flaws of the preliminary reference procedure are not unavoidable and without remedy. Even de lege lata, they can be kept at bay by some adjustments in judicial practice both of the referring courts and the ECJ. The article concludes with some suggestions to this effect.