Iura novit curia? : the aim of the preliminary ruling procedure and its achievement from a civil law perspective

Abstract

This study presents a critical assessment of the preliminary reference procedure of the European Union, particularly the burden which is put on the national judiciary of “new” Member States with a civil law legal tradition in order to comply with Article 267 TFEU. The purpose of this thesis is not just a mere analysis of the provisions of the Treaty and the case law of the Court of Justice of the European Union (Court of Justice), it is intended to explore the determining elements which can explain the fluctuating numbers of initiated preliminary reference procedures amongst Member States. The principles, concepts and theories which have been developed by the Court of Justice are scrutinized from a civil law aspect whether the Court’s rulings – which are considered to broaden the limits of applicability or the effectiveness of the procedure – helped to achieve the aims of the preliminary ruling procedure, in particular in Member states with civil law legal system. This thesis also contains a discussion of a survey carried out amongst Hungarian judges in order to verify or disaffirm the author’s hypothesis, namely that one significant factor – which influences the decisions of national judges whether to refer of not – is his/her level of familiarity with the law of the European Union.