Поступак о претходном питању између интерпретативног и правностваралачког деловања Суда правде Европске уније
The Preliminary Ruling Procedure Between Interpretative and Lawmaking Actions of the Court of Justice of the European Union

Author(s): Boris Tučić, Radmila Dragišić
Subject(s): Social Sciences, Law, Constitution, Jurisprudence
Published by: Правни факултет Универзитета у Источном Сарајеву
Keywords: EU law;Preliminary ruling proceedings;International law;National law;Creation;Interpretation, and Application of the law
Summary/Abstract: The preliminary ruling procedure before the Court of Justice of the European Union, as its exclusive interpretative authority in the past seven decades, has proven to be critical instrument not only of the jurisprudential constitutionalisation of the legal order of the European organisation in a way in which the Member States, as "the masters of the Treaties" (Solange case) could not even imagine, but also of its substantive enrichment in different areas, thus achieving direct but crucial communication with national courts and national legal systems in general. A broad spectrum of "achievements" of the Court of Justice within the preliminary ruling procedure, from establishing the concept of the autonomy of EU law, and identification and evolution of its specific content elements, where the central place belongs to the ones with the constitutional character, such as the principles of the primacy and direct effect or the principle of uniform interpretation and efficient application of the Organisation's law, through interpretative filling of legal gaps and loopholes even in areas characterized by clear contractual restrictions in the context of position and competence of the European judicial institution, such as, in the earlier period, internal affairs and judiciary, i.e., today still Common foreign and security policy of the European Union, to specific interpretative defining of relations between the European organisation law and typical international law on different grounds, imposes the necessity to answer the question regarding the extent to which the preliminary ruling procedure has been truly exhausted in its original contractual purpose, which is interpreting and determining the validity of EU law, and to which it has served to the Court of Justice as, conditionally, a lawmaking mechanism at both the constitutional and substantive legal level. In the attempt to provide an answer to this question, this paper, along with contractual solutions, primarily analyzes the case law of the Court of Justice through which the mentioned and some other "achievements" in the domain of shaping the legal nature, but also specific substantive law solutions in the legal order of the European organisation, have been accomplished. In doing so, in order to create the appropriate framework for such actions, the Court of Justice first attempted to shape the very preliminary ruling procedure in an identical way, and then, from the mid-70s, to face "the gauntlet thrown down"by supreme national judiciary authorities, embodied in the constitutional courts of the Member States, which did not look with approval on its, admittedly rather hidden "lawmaking" pretensions.

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