European Journal of Legal Studies. EJLS 10th Anniversary Conference, Special issue 2018.
Date: 2018-12-23
Institutions: European University Institute
Subjects: Court of Justice of the European Union, EU banking union, EU law - international law, EU law - national law, European Central Bank, European integration, Netherlands, migration policy

EJLS 10th Anniversary Conference 
Special Issue 2018 

EDITORIAL 

Rebecca Mignot-Mahdavi 
No Journey is a Straight Path 

CONFERENCE ARTICLES 

Lucie Pacho Aljanati  
Multilingual EU Law: A New Way of Thinking   

Lando Kirchmair  
Who Has the Final Say? The Relationship Between  
International, EU and National Law 

Jasper Krommendijk 
The Preliminary Reference Dance between the CJEU and 
Dutch Courts in the Field of Migration   

1 

5 

47 

101 

Lena Boucon and Daniela Jaros 
The Application of National Law by the European Central Bank 
within the EU Banking Union's Single Supervisory Mechanism:  
A New Mode of European Integration?   

155 

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Editorial Board 
Editor-in-Chief 
Managing Editors 
Executive Editors 
Heads of Section 

Senior Editors 

Junior Editors 

Senior External Editors 

Junior External Editors 

Rebecca Mignot-Mahdavi  
Anna Krisztián, Janneke van Casteren  
Timothy Jacob-Owens, Maria Haag, Rūta Liepiņa  
Stavros Makris (European Law) 
Théo Fournier (Comparative Law) 
Marcin Barański (Legal Theory) 
Sergii Masol (International Law) 
Marcin Barański, Birte Böök, Filipe Brito Bastos, Kayahan 
Cantekin, Elias Deutscher, Leticia Díez Sánchez, Kasper 
Drazewski, Fabrizio Esposito, Théo Fournier, Oliver Garner, Tarik 
Gherbaoui, Maria Haag, Galyna Kostiukevych, Rūta Liepiņa, 
Stavros Makris, Afroditi Marketou, Thibault Martinelli, Sergii 
Masol, Margherita Melillo, Rebecca Mignot-Mahdavi, Irene Otero 
Fernández, Chloé Papazian, Luigi Pedreschi, Promitheas Peridis, 
Christy Petit, Ricardo Rodrigues de Oliveira, Alexandre Ruiz 
Feases, Martijn van den Brink, Viorica Vita, Raphaële Xenidis 
Yussef Al Tamimi, Maria Ana Barata, Olga Ceran, Dima Hussain, 
Timothy Jacob-Owens, Gonzalo Larrea, Matilda Merenmies, 
George Papaconstantinou, Marie-Catherine Petersmann, Nastazja 
Potocka-Sionek, Arpitha Upendra Kodiveri, Mike Videler, 
Mikaella Yiatrou, Nico Weber 
Lucila Almeida, Ieva Bloma, Federica Coppola, Stephen Coutts, 
François Delerue, Giuliana Giuliani, Carl Lewis, Emma Nyhan, 
Argyri Panezi, Stavros Pantazopoulos, Theodosia Stavroulaki, 
Marita Szreder, Mikhel Timmerman, Zeynep Timocin Cantekin, 
Vegard Torstad, Jan Zglinski  
Edwin Alblas, Jacintha Asarfi, Annemarie Balvert, Chiara Destri, 
Maria José Recalde Vela, Gerrit Krol, Madalena Narciso, Ileana 
Nicolau 

Departmental Advisory Board 
Deidre Curtin, Claire Kilpatrick, Urška Šadl, Martin Scheinin 
New Voices Selection Committee  
Deirdre Curtin, Gabor Halmai, Claire Kilpatrick 

Website 
www.ejls.eui.eu 

Submissions 
The  European  Journal  of  Legal  Studies  invites  submissions  from  professors,  practitioners,  and 
students.  In  particular,  we  welcome  articles  demonstrating  a  comparative,  contextual  and 
interdisciplinary approach to legal scholarship. Articles should be submitted in electronic format to 
Submissions.EJLS@EUI.eu. If electronic submission is not practicable, please send a hard copy to: 

Editor-in-Chief 
European Journal of Legal Studies 
Villa Salviati, Via Bolognese 156  
50139 Firenze, Italy 

The name of the author and contact details should appear only on a separate cover sheet to facilitate 
objective,  anonymous  evaluation.  The  Journal  is  committed  to  multilingualism  and  accepts 
submissions in any European language within the competence of the Board. 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
European Journal of Legal Studies 
10th Anniversary Conference Special Issue 

TABLE OF CONTENTS 

EDITORIALEDITORIAL 

Rebecca Mignot-Mahdavi 
No Journey is a Straight Path 

CONFERENCE ARTICLES 

Lucie Pacho Aljanati  
Multilingual EU Law: A New Way of Thinking   

Lando Kirchmair  
Who Has the Final Say? The Relationship Between 
International, EU and National Law 

Jasper Krommendijk 
The Preliminary Reference Dance between the CJEU and  
Dutch Courts in the Field of Migration   

1 

5 

47 

101 

Lena Boucon and Daniela Jaros 
The Application of National Law by the European Central Bank 
within the EU Banking Union's Single Supervisory Mechanism: 
A New Mode of European Integration?   

155 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
EDITORIAL 

NO JOURNEY IS A STRAIGHT PATH 

Rebecca Mignot-Mahdavi* 

Last year, the European Journal of Legal Studies (EJLS) celebrated its tenth 
anniversary at the European University Institute (Florence, Italy). At a time 
when the EU fears and encounters erosion and disintegration, the EJLS took 
this anniversary as an opportunity to invite scholars from all over Europe for 
an intense and fruitful two-day conference on legal issues arising from the EU 
project. A selection of four conference papers features in this special issue. 
While  the  authors  by  no  means  underestimate  the  unique  nature  of  the 
challenges currently facing the European project, they equally do not seem to 
consider  that  progress  towards  an  ever-closer  Union  was  ever  meant  to  be 
straightforward. 

As  such,  the  conference  contributions  do  not  feature  dashed  hopes  of 
continuous progress towards an increasing number of joint policies adopted 
in  the  EU  or  broken  hearts  over  exiting  states.  Rather,  the  five  authors 
propose tools for understanding and organizing micro-processes taking place 
within  the  EU,  including  micro-processes  of  interaction  between  EU 
Member States and EU organs. The result of this common endeavor makes 
for  a  refreshing  read,  breaking  from  the  current  alarmist  EU  literature  in 
which a step backwards is taken as the beginning of the end of the EU project. 

This special issue is thus an opportunity to explore ongoing EU mechanics 
and processes, starting with Lucie Pacho Aljanati's subtle take on questions 
of uniform application and interpretation of EU law. By sharing her findings 
on the divergences of interpretation of EU law revealed by different language 
versions  of  decisions  of  the  European  Court  of  Justice,  she  successfully 
conveys the importance of looking in an informed and reasoned way at the 
multilingual  architecture  of  EU  law.  After  this  deep  dive  into  the  issue  of 

*  Rebecca Mignot-Mahdavi is a PhD Candidate at the European University Institute 

(Florence, Italy) and the Editor-in-Chief of the EJLS. 

 
                                                 
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European Journal of Legal Studies  

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linguistic integration, Lena Boucon and Daniela Jaros provide a rigorous and 
stimulating analysis of the current dynamics of monetary integration. Their 
piece examines the application of national law by the European Central Bank 
within  the  EU  banking  union's  single  supervisory  mechanism  (SSM)  and 
conceptualizes  this  application  as  a  new,  hybrid,  mode  of  European 
integration.  Moving  to  the  scrutiny  of  a  case  of  interaction  between  the 
national  and  EU  level,  Jasper  Krommendjik  invites  us  to  observe  the 
preliminary  reference  'dance'  between  the  CJEU  and  Dutch  courts  in  the 
field of migration. Through legal-empirical research, the author establishes 
that  the  decisions  of  national  judges  in  the  Netherlands  not  to  refer  a 
question to the CJEU do not reflect some political strategies, but rather legal 
considerations  or  circumstantial  elements.  Finally,  looking  at  the  national 
and  EU  level  interaction  from  a  broader  perspective,  Lando  Kirchmair 
revisits the issues raised by the complex relationships between international, 
EU  and  national  law.  After  outlining  his  dissatisfaction  with  the  existing 
theoretical  frameworks,  Kirchmair  sketches  a  'theory  of  the  law  creators' 
circle' in an attempt to reconceptualize these relationships. 

With  that,  I  invite  our  readers  to  delve  into  these  highlights  of  the  EJLS 
conference. I wish to congratulate the special task force of editors and the 
former Executive Board of the journal who made the event a great success. I 
would also like to express our gratitude to the Academy of European Law, to 
Anny  Bremner,  Joyce  Davies,  as  well  as  Hélène  Debuire  Franchini  and 
Agnieszka Lempart, without whom the 10th anniversary conference could not 
have happened. 

The  completion  of  this  10th  anniversary  project  is  also  where  some  of  the 
editors of the EJLS end their own journey as part of the Executive Board of 
the  journal:  Rūta  Liepina  and  Maria  Haag,  to  whom  I  wish  to  express 
heartfelt  thanks  on  behalf  of  the  entire  board  for  their  incredible  work  as 
Executive  Editors,  and  Marcin  Baránski  and  Théo  Fournier,  Heads-of-
Section  for  Legal  Theory  and  Comparative  Law  respectively.  My  time  as 
Editor-in-Chief of the EJLS, whose adventures I will continue to follow with 
delight,  has  also  come  to  an  end.  It  has  been  wonderful  working  with  and 
learning from all the editors of the journal, and very gratifying to develop the 
EJLS  projects  in  the  supportive  environment  of  the  European  University 
Institute. I wish to extend sincere thanks to the EUI Web communications 

2018} 

Editorial 

3 

services  and  in  particular  to  Francesco  Martino,  Web  Communications 
Manager,  and  Andrea  Kostakis  for  their  invaluable  help  in  designing  and 
creating  the  new  website  and  for  providing  us  assistance  with  unfailing 
generosity  and  enthusiasm.  Finally,  I  wish  to  express  special  thanks  to  the 
President of the EUI, Professor Renaud Dehousse and his office, to the EUI 
Law Department, and to the members of the EJLS Departmental Advisory 
Board, Professor Deidre Curtin, Professor Claire Kilpatrick, Professor Urška 
Šadl, and Professor Martin Scheinin, for allowing us to develop our projects 
independently  and  with  the  peace  of  mind  knowing  that  they  are  always 
happy to advise and support us when needed. 

Thanks  to  their  support,  an  EJLS  prize  will  be  awarded  to  the  best  New 
Voices  contribution  and  another  to  the  best  General  Article  written  by  a 
young scholar for the Autumn 2018 Issue and the Spring 2019 Issue. 

 
CONFERENCE ARTICLES 

MULTILINGUAL EU LAW: A NEW WAY OF THINKING 

Lucie Pacho Aljanati*

This study addresses an essential characteristic of the EU legal order: its legislation is 
multilingual and equally authentic in all language versions. In this paper, I use corpus 
analysis to examine the issue of divergences between language versions that come to 
light in EU case-law. This paper pursues three specific objectives: 1) to study the use of 
comparison between language versions by the Court of Justice of the European Union 
(CJEU), 2) to consider the methods of interpretation that the CJEU applies when 
considering multilingualism, and 3) to delve into the types of divergences and try to 
elucidate whether they can be attributed to translation problems. This applied study 
helps  to  shed  light  on  the  implications  multilingualism  has  for  the  creation  and 
interpretation  of  EU  law.  In  order  to  understand  how  legal  translation  and 
interpretation  actually  work  in  the  EU,  I  adopt  a  reasoned  approach  to  face  the 
challenges posed by the multilingual architecture of EU law, a new way of thinking 
that considers linguistic issues as important as legal issues. 

Keywords:  multilingual  EU 
interpretation, legal certainty 

law, 

legal 

translation,  divergences, 

TABLE OF CONTENTS 

I. INTRODUCTION .............................................................................................. 6 
II. USE OF COMPARISON BETWEEN DIFFERENT LANGUAGE VERSIONS ..... 8 
Group 1 – Hard Cases: Divergences Treated as a Problem of Interpretation....... 13 
G1 – Divergences Detected at an Early Stage .......................................... 13 

* 

PhD  in  International  Relations  and  European  Integration  (Faculty  of  Law, 
Autonomous University of Barcelona) and PhD in Translation Studies (Faculty of 
Translation  and  Interpreting,  University  of  Geneva).  Lecturer  of  Legal  and 
Economic  Translation  at  the  Faculty  of  Translation  and  Interpreting,  Pompeu 
Fabra University, lucie.pacho@upf.edu.  
I am immensely grateful to the two anonymous reviewers for their careful reading 
and valuable comments. 

 
 
 
                                                 
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European Journal of Legal Studies  

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G1 – Divergences Detected at a Later Stage ............................................ 19 
Group 2 – Soft Cases: Divergences Not Treated as a Problem of Interpretation  25 
G2 – Divergences Detected at an Early Stage .......................................... 25 
G2 – Divergences Detected at a Later Stage ............................................ 27 
Group 3: No Divergence but Comparison is Used as Confirmation ..................... 29 
III. LEGAL CERTAINTY AND METHODS OF INTERPRETATION .................. 30 
1. A Note on Legal Certainty .................................................................................. 30 
2. Methods of Interpretation .................................................................................... 33 
IV. TYPES OF DIVERGENCES ............................................................................ 38 
1. Structural-Grammatical Divergences ................................................................ 41 
2. Lexical-Conceptual Divergences ......................................................................... 42 
V. CONCLUSIONS.............................................................................................. 44 

I. INTRODUCTION 

When  studying  the  legal  nature  of  the  EU  it  is  common  to  highlight  the 
binding character of EU legislation and its invocability or direct effect. In this 
study, I emphasise another important feature of EU legislation: the fact that 
it  is  multilingual  and  equally  authentic  in  all  language  versions.1  EU  law 
produces  rights  and  obligations  for  individuals  and  this  'justifies  the 
rendering of the legislation in all official languages', as a way to ensure equality 
before the law.2 

As a consequence, translation plays a fundamental role in the development 
and  application  of  multilingual  EU  law.  Translators  create  texts  that  are 
legally  binding;3  they  are  key  actors  in  law-making  because  drafting  takes 

1 

2 

See  Case  283/81  Srl  CILFIT  and  Lanificio  di  Gavardo  SpA  v  Ministry  of  Health 
EU:C:1982:335, para 18. 
Lucie Pacho Aljanati, The Court of Justice of the European Union's case law on linguistic 
divergences (2007-2013): interpretation criteria and implications for the translation of EU 
legislation. Doctoral thesis 2015, available at: http://hdl.handle.net/10803/314190 
3  On the role of translators as text producers, see, for example, Susan Šarčević, New 
Approach  to  Legal  Translation  (Kluwer  Law  International  1997);  Susan  Šarčević, 
'Challenges to the Legal Translator' in Peter M. Tiersma and Lawrence. M. Solan 
(eds), The Oxford Handbook of Language and Law (Oxford University Press 2012) 191. 

                                                 
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Multilingual EU Law 

7 

place through translation.4 Therefore, the creation of EU legislation includes 
the  work  of  drafters,  translators  and  lawyer-linguists,  who  normally  act  as 
legal  revisers  and  supervise  the  linguistic  concordance  of  the  language 
versions.5  The term 'language version' is used instead of 'translation' because 
all  EU  texts  are  equally  authoritative.  But  can  rules  carry  identical  legal 
implications  in  all  languages?  Divergences  between  the  different  languages 
are inevitable. In case of doubt, the Court of Justice of the European Union 
(CJEU) is responsible for interpreting EU law (Art. 267 TFEU) and acts as the 
guarantor of uniform application and interpretation of EU legislation, always 
based on the premise that all versions constitute the same legal instrument.  

In  this  paper,  I  use  corpus  analysis6  to  examine  issues  of  divergences  that 
come to light in EU case-law. Searches in the CVRIA database were carried 
out using the key term 'language versions'. This allows the retrieval of cases 
in which different language versions were invoked. The period chosen covers 
01/01/2017  until  30/06/2017.  This  corpus  analysis  pursues  three  specific 
objectives. First, I study the use of comparison between language versions. I 
observe whether comparison is used to reconcile diverging language versions 
or to support an interpretation when no divergences are present (Section II). 
Second, I consider the methods of interpretation that the CJEU applies. For 
this, I divide cases into two main groups: those involving linguistic criteria of 
interpretation and those resorting to metalinguistic criteria of interpretation 
(Section III). Metalinguistic methods attempt to reconcile diverging texts by 
referring to the system and the purpose of the texts, that is to say, applying 
criteria that go beyond the linguistic level and make it possible to solve the 
problem without having to choose among the language versions.7 Section III 

4 

See  Ingemar  Strandvik,  'EU  Translation  –  Legal  Translation  in  Multilingual 
Lawmaking', Conference proceedings: The Eleventh International FIT/EULITA 
Forum: The Life of Interpreters and Translators - Joy and Sorrow? 

5  On  the  shared  legal-linguistic  revision,  see,  for  instance,  Manuela  Guggeis  and 
William Robinson, 'Co-revision': Legal-Linguistic Revision in the European Union 
'Co-decision' Process' in Cornelis Jaap W. Baaij (ed), The Role of Legal Translation 
in Legal Harmonisation (Wolters Kluwer 2012) 51 and Aljanati (n 2) 64. 

6  A  corpus  typically  implies  a  finite  body  of  texts,  sampled  to  be  maximally 
representative and able to be stored electronically. See Tony McEnery and Andrew 
Wilson, Corpus Linguistics (Edinburgh University Press 2007) 29. 
Pierre  Pescatore  'Interprétation  des  lois  et  conventions  plurilingues  dans  la 
Communauté européenne' (1984) 25(4) Les Cahiers de Droit 996. 

7 

                                                 
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European Journal of Legal Studies  

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also deals with interpretive techniques to solve divergences. It explores the 
issue of legal certainty in relation to multilingualism. Finally, I delve into the 
types of divergences and try to elucidate whether they can be attributed to 
translation  problems.  In  addition,  the  examples  shed  light  on  the  way  the 
CJEU constructs meaning (Section IV). 

This  applied  study  brings  to 
light  some  of  the  implications  that 
multilingualism has for the creation and interpretation of EU law. I sustain 
that, in order to understand how legal translation and interpretation actually 
work in the EU, it is necessary to adopt a new way of thinking, which regards 
not only legal matters but also linguistic ones. Thus, I adopt a non-positivist 
perspective to address how meaning is construed and how legal certainty is 
reconciled  with  multilingualism.8  These  research  questions  necessitate 
interdisciplinary  insights.  I  adopt  an  approach  that  deals  with  judicial 
interpretation from a linguistic perspective, regarding translation as key for 
the existence of EU legislation. 

II. USE OF COMPARISON BETWEEN DIFFERENT LANGUAGE VERSIONS 

This  section  examines  the  use  of comparison  between  language  versions.  I 
observe whether comparison is used to reconcile diverging language versions 
or to support an interpretation when no divergences are present. 

The  search  in  the  CVRIA  database  was  done  by  selecting  the  following 
criteria: 

Period or date = 'Date of delivery' 

Period = 'from 01/01/2017 to 30/06/2017' 

Documents =  Documents published in the ECR: Judgments; 

Documents not published in the ECR: Judgments 

Text = 'language versions' 

8  On  non-positivist  perspectives  in  relation  to  meaning,  see,  for  instance,  Ralph 
Christensen  and  Michael  Sokolowski,  'Wie  normative  ist  Sprache?  Der  Richter 
zwischen  Sprechautomat  und  Sprachgesetzgeber'  in  Ulrike  Haß-Zumkehr  (ed), 
Sprache und Recht (Walter de Gruyter 2002) 65.  

                                                 
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Multilingual EU Law 

9 

Regarding the key term, I carried out many searches in previous studies using 
several  key  words.  I  concluded  that  the  term  'language  versions'  extracts 
almost all instances of comparison between different language versions.9 In 
addition, in the present study I do not limit the search to any policy area.  

Fourteen  judgements  were  obtained.  The  initial  question  that  arose  was 
whether  all  instances  of  comparison  dealt  with  a  divergence  between 
different language versions. In ten cases (71%), comparison concerned some 
kind  of  divergence.  However,  there  were  four  cases  (29%)  in  which  no 
divergence  was  present  but  the  CJEU  used  comparison  to  confirm  an 
interpretation, normally by stating that all language versions converged. 

29%

Comparison used as
confirmation (4 cases)

Comparison used to
reconcile diverging
versions (10 cases)

71%

Figure 1: Use of comparison 

If we consider the total number of judgements that the CJEU issued during 
the chosen period, these fourteen judgements represent only 3% of the cases. 
This  figure  is  in  line  with  the  results  obtained  from  larger  and  different 

9 

Christensen  and  Sokolowski  (n  8);  Fernando  Prieto  Ramos  and  Lucie  Pacho 
Aljanati, 'Comparative Interpretation of Multilingual Law in International Courts: 
Patterns  and  Implications  for  Translation'  in  Fernando  Prieto  Ramos  (ed), 
Institutional  Translation 
in 
Multilingual Legal Communication (Bloomsbury 2017). 

for  International  Governance.  Enhancing  Quality 

                                                 
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periods,  which  means  the  period  selected  for  this  study  is  highly 
representative.10 

Moreover,  looking  at  the  type  of  proceedings,  most  cases  (79%)  are 
references  for  a  preliminary  ruling.  These  are  the  typical  proceedings  in 
which issues of linguistic divergences are treated. In these cases, the referring 
court has doubts as to the interpretation of a certain provision and the CJEU, 
in the framework of its competences (Art. 267 TFEU), has the final word in 
deciding how it must be interpreted.11 

21%

Direct actions before the
General Court (3 cases)

79%

Indirect actions
(references for a
preliminary ruling) (11
cases)

Figure 2: Types of proceedings 

In addition, all cases were further classified into three different groups:12 

Group 1 – Hard cases: divergences treated as a problem of interpretation  

Group 2 – Soft cases: divergences not treated as a problem of interpretation 

Group 3: No divergence but comparison is used as confirmation 

12 

10  Pacho Aljanati (n 2); Prieto Ramos and Pacho Aljanati (n 9). 
11 

Pacho Aljanati (n 2). 
I follow the classification used in previous studies: Pacho Aljanati (n 2) and Lucie 
Pacho Aljanati, 'Multilingual Interpretation by the CJEU in the Area of Freedom, 
Security and Justice' in Joanna Jemielniak and Anne-Lise Kjær (eds), Language and 
Legal Interpretation in International Law (Oxford University Press 2018). 

 
                                                 
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Multilingual EU Law 

11 

and 

'unproblematic  discrepancies' 

Cornelis  Jaap  Baaij  mentions  a  similar  classification:  'discrepancies  posing 
'no 
interpretation  problems', 
discrepancies'.13  However,  he  does  not  provide  details  on  these  three 
categories and moves on to analyse the interpretive strategies, i.e. he analyses 
the method of interpretation that the CJEU applies. Joxerramon Bengoetxea 
differentiates between hard cases and clear cases. The term 'case' refers to a 
situation or a state of affairs, i.e. to the applicability of the sources to a certain 
situation  in  a  given  context.14  He  explains  that  hard  cases  call  for 
interpretation because of semantic or pragmatic features of the case at hand, 
for  example  because  the  meaning  of  the  applicable  norm  may  not  be  clear 
owing to polysemy, vagueness, generality and ambiguity of the terms used in 
the  norm,  or  due  to  the  open  texture  of  legal  language.15  In  contrast,  the 
justification of a decision in a clear case tends to be straightforward.16 'Clear 
case' refers to a situation in which 'the applicability of a legal rule or a set of 
legal rules to certain facts is clear and unproblematic'.17 

I  call  Group  1  'hard  cases'  because  the  CJEU  deals  with  problematic 
divergences that require metalinguistic interpretation. However, for Group 
2  I  use  the  term  'soft  cases'  and  not  'clear  cases'  because  the  judgements 
present some divergences that are solved relatively easily. From the evidence 
found  in  the  applied  study,  we  cannot  conclude  that  all  requests  for  a 
preliminary ruling are hard cases.18 

I first analyse all instances of divergences quantitatively, without limiting the 
investigation  to  any  languages  in  particular.  This  offers  a  global  picture  of 
how  cases  are  distributed  into  the  three  groups  and  the  methods  of 
interpretation that the CJEU applies. The qualitative analysis focuses on an 
examination of the types of divergences, refining and exploring the linguistic 

14 

13  Cornelis Jaap W. Baaij, 'Fifty years of Multilingual Interpretation in the European 
Union'  in  Peter  Tiersma  and  Lawbrence  Solan  (eds),  The  Oxford  Handbook  of 
Language and Law (Oxford University Press 2012) 219. 
Joxerramon  Bengoetxea,  The  Legal  Reasoning  of  the  European  Court  of  Justice 
(Clarendon Press 1993) 183. 
Ibid 168. 
Ibid 173. 
Ibid 184. 
Suvi  Sankari,  European  Court  of  Justice  Legal  Reasoning  in  Context  (Europa  Law 
Publishing 2013) 80, citing Bengoetxea (n 14). 

16 

18 

17 

15 

                                                 
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and translation issues in greater detail. The focus is on Group 1 and Group 2. 
For this part, comparison is limited to English, French, German and Spanish, 
as these are my working languages.  

The following graph shows the distribution of the cases: 

29%

21%

50%

G1-Hard cases (7)

G2-Soft cases (3)

G3-No divergence (4)

Figure 3: Distribution of cases 

I also observe whether the divergence appears at an early stage (the referring 
court or one of the parties have already noted a divergence) or at a later stage 
(normally in cases where the referring court poses a question for a preliminary 
ruling and the Advocate General or the Court unveils the divergence at a later 
stage when trying to answer the question). The results show that in Group 1, 
in three cases the divergence was detected at an early stage, while in four cases 
the  divergence  appeared  later.  In  Group  2,  two  of  the  cases  present  a 
divergence that appeared at an early stage and one case concerns a divergence 
that  was  noted  at  a  later  stage.  The  stage  of  discovering  the  divergence 
matters because it indicates who initiates comparison and why. 

 
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13 

Group 1 – Hard Cases: Divergences Treated as a Problem of Interpretation  

G1 – Divergences Detected at an Early Stage 

In the Sharda Europe case,19 the Court used the expression 'as the referring 
court states' in order to acknowledge that there was a divergence between the 
wording  of  the  Spanish  version  and  that  of  the  other  official  language 
versions. The provision in question was the first subparagraph of Article 3(2) 
of Directive 2008/69 (emphasis added in italics): 

ES 

DE 

2. Como excepción a lo establecido en el apartado 1, todo producto 
fitosanitario autorizado que contenga una de las sustancias activas 
enumeradas en el anexo como única sustancia activa, o junto con 
otras  sustancias  activas  incluidas  todas  ellas  en  el  anexo  I  de  la 
Directiva 91/414/CEE, será objeto de una nueva evaluación, a más 
tardar, el 31 de diciembre de 2008, por parte de los Estados miembros 
de acuerdo con los principios uniformes previstos en el anexo VI 
de  la  citada  Directiva,  sobre  la  base  de  una  documentación  que 
reúna  los  requisitos  establecidos  en  su  anexo  III  y  que  tenga  en 
cuenta la parte B de la entrada en su anexo I por lo que respecta a 
las sustancias activas enumeradas en el anexo. 

(2)  Abweichend  von  Absatz  1  unterziehen  die  Mitgliedstaaten 
jedes zugelassene Pflanzenschutzmittel, das einen der im Anhang 
genannten  Wirkstoffe  entweder  als  einzigen  Wirkstoff  oder  als 
einen von mehreren Wirkstoffen enthält, die sämtlich bis spätestens 
31.  Dezember  2008  in  Anhang  I  der  Richtlinie  91/414/EWG 
aufgeführt  waren,  einer  Neubewertung  nach  den  einheitlichen 
Grundsätzen  gemäß  Anhang  VI  der  Richtlinie  91/414/EWG.  Sie 
stützen  sich  dabei  auf  Unterlagen,  die  den  Anforderungen  des 
Anhangs III dieser  Richtlinie genügen, und berücksichtigen den 
Eintrag in Anhang I Teil B der genannten Richtlinie in Bezug auf 
die im Anhang genannten Wirkstoffe. 

EN 

2. By way of derogation from paragraph 1, for each authorised plant 
protection product containing one of the active substances listed 

19  Case C-293/16 Sharda Europe BVBA v Administración del Estado and Syngenta Agro, 

SA EU:C:2017:430. 

                                                 
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in the Annex as either the only active substance or as one of several 
active substances all of which were listed in Annex I to Directive 
91/414/EEC by 31 December 2008 at the latest, Member States shall re-
evaluate  the  product  in  accordance  with  the  uniform  principles 
provided for in Annex VI to Directive 91/414/EEC, on the basis of 
a dossier satisfying the requirements of Annex III to that Directive 
and  taking  into  account  part  B  of  the  entry  in  Annex  I  to  that 
Directive concerning the active substances listed in the Annex. 

FR 

1, 

au 

tout 

dérogation 

paragraphe 

2.  Par 
produit 
phytopharmaceutique  autorisé  contenant  l'une  des  substances 
actives  mentionnées  dans  l'annexe,  en  tant  que  substance  active 
unique ou associée à d'autres substances actives, toutes inscrites à 
l'annexe I de la directive 91/414/CEE au plus tard le 31 décembre 2008, 
fait 
les  États  membres, 
conformément  aux  principes  uniformes  prévus  à  l'annexe  VI  de 
ladite directive, sur la base d'un dossier satisfaisant aux conditions 
de son annexe III et tenant compte de la partie B de l'inscription à 
son annexe I concernant les substances actives mentionnées dans 
l'annexe. 

réévaluation  par 

l'objet  d'une 

The  divergence  is  clear  because  in  the  Spanish  version  the  date  of  31 
December 2008 constitutes the deadline by which the Member States must 
carry  out  a  re-evaluation.  In  contrast,  in  the  German,  English  and  French 
versions this date refers to the listing of the active substances contained in 
the  authorised  plant  protection  product  that  is  to  be  re-evaluated  by  the 
Member  States.  The  Court  seemed  to  compare  other  language  versions  as 
well: 'The same is true, inter alia, of the Greek, Italian and Dutch versions of 
that provision'.20 

The Court explained that the Spanish version was the one that differed from 
the rest: 'More specifically, the wording of all those language versions, with 
the  exception  of  the  Spanish  version  [...]'.  According  to  the  Court,  this 
provision indicates that 'the plant protection product concerned must be re-
evaluated if all the active substances composing it, together with those listed 

20 

Sharda Europe (n 19) para 19. 

 
                                                 
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in the Annex to Directive 2008/69, had been listed in Annex I to Directive 
91/414 by 31 December 2008 at the latest'.21 

Immediately  after  that,  the  Court  invoked  the  idea  that  all  versions 
constitute the same legal instrument and must be read jointly: 'the wording 
used in one language version of a provision of EU law cannot serve as the sole 
basis  for  the  interpretation  of  that  provision  or  be  given  priority  over  the 
other  language  versions  in  that  regard'.22  The  Court  then  moved  on  to  a 
teleological interpretation by referring to the 'general scheme and purpose of 
the rules'.23 After examining the context and the purpose of the Directive,24 
the Court confirmed that the date of 31 December 2008 corresponds to 'the 
deadline by which all the active substances contained in that plant protection 
product,  other  than  those  listed  in  the  Annex  to  Directive  2008/69,  must 
have been included on the list in Annex I to Directive 91/414'.25 Finally, in this 
case there was no Opinion of the Advocate General that could provide any 
other information.26 

The second case that I analyse in this group is Pinckernelle.27 From a reading 
of the judgement of the Court, it seems that the divergence appeared later, 
because no mention is made as to who detected the problem. However, after 
examining  the  Opinion  of  the  Advocate  General  I  realised  that  the 
divergence was in fact spotted earlier: 'The written observations of the City 
of  Hamburg,  Germany,  Italy  and  the  Commission  all  feature  discussion  of 

21 

22 

23 

24 

25 

Sharda Europe (n 19) para 20. 
Ibid para 21. 
Ibid. 
Ibid paras 22-24. 
Ibid para 25. 

26  Not all cases have an Opinion of the Advocate General. 
27  Case C-535/15 Freie und Hansestadt Hamburg v Jost Pinckernelle EU:C:2017:315. 

                                                 
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the various language versions of Article 5 of the REACH Regulation28 with 
respect to the meaning of 'placed on the market'.29  

The  Commission  argued  that  there  were  eight  language  versions  (Danish, 
Latvian,  Hungarian,  Romanian,  Slovakian,  Swedish,  Slovenian,  and  Czech 
versions) in which the words 'in the Community' in Article 5 of the REACH 
Regulation applied both to manufacture and to placing on the market. Three 
language  versions  (Spanish,  Lithuanian  and  German)  were  ambiguous,  and 
ten (Bulgarian, Estonian, Finnish, Greek, Italian, Dutch, Polish, Portuguese, 
French  and  English)  appeared  to  attach  the  territorial  limitation  'in  the 
Community' only to manufacture.30  

ES 

DE 

EN 

Sin  perjuicio  de  lo  dispuesto  en  los  artículos 6,  7,  21  y 23,  no  se 
fabricarán en la Comunidad ni se comercializarán sustancias, como 
tales o en forma de preparados o contenidas en artículos, a menos 
que  se  hayan  registrado  de  conformidad  con  las  disposiciones 
pertinentes del presente título que así lo exijan. 

Vorbehaltlich der Artikel 6, 7, 21 und 23 dürfen Stoffe als solche, in 
Gemischen  oder  in  Erzeugnissen  nur  dann  in  der  Gemeinschaft 
hergestellt  oder  in  Verkehr  gebracht  werden,  wenn  sie  nach  den 
einschlägigen Bestimmungen dieses Titels, soweit vorgeschrieben, 
registriert wurden. 

Subject  to  Articles  6,  7,  21  and  23,  substances  on  their  own,  in 
preparations  or  in  articles  shall  not  be  manufactured  in  the 
Community  or  placed  on  the  market  unless  they  have  been 
registered in accordance with the relevant provisions of this Title 
where this is required. 

28  Regulation (EC) 1907/2006 of the European Parliament and of the Council of 18 
December  2006  concerning  the  Registration,  Evaluation,  Authorisation  and 
Restriction of Chemicals (REACH), establishing a European Chemicals Agency, 
amending  Directive  1999/45/EC  and  repealing  Council  Regulation  (EEC)  793/93 
and Commission Regulation (EC) 1488/94 as well as Council Directive 76/769/EEC 
and  Commission  Directives  91/155/EEC,  93/67/EEC,  93/105/EC  and  2000/21/EC 
(Text with EEA relevance) [2006] OJ L 396. 
Ibid, EU:C:2016:996, Opinion of AG Tanchev, para 35. 
Pinckernelle (n 27) para 38. 

30 

29 

                                                 
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FR 

Sous réserve des articles 6, 7, 21 et 23, des substances telles quelles 
ou  contenues  dans  des  préparations  ou  des  articles  ne  sont  pas 
fabriquées dans la Communauté ou mises sur le marché si elles n'ont 
pas  été  enregistrées  conformément  aux  dispositions  pertinentes 
du présent titre, lorsque cela est exigé. 

A more detailed analysis of the four languages I compare in this study shows 
that the Spanish and German versions are ambiguous (it is not clear whether 
'in  the  Community'  refers  to  both  the  manufacture  and  the  placing  in  the 
market)  whereas  in  the  English  and  French  versions  the  expression  'in  the 
Community' is explicitly linked to the manufacture of substances. 

It is interesting that before engaging in comparison the Court sustained that 
'for  the  purpose  of  interpreting  a  provision  of  EU  law  it  is  necessary  to 
consider not only its wording but also the context in which it occurs and the 
objectives pursued by the rules of which it is part'.31 Then it compared and 
remarked  the  diverging  interpretations.  After  that,  it  continued  with  an 
examination of the context.32 After a careful analysis, the Court concluded 
that the expression 'placing on the market' relates to the internal market of 
the EU. Therefore, the expression 'in the Community' is modifying both the 
manufacture and placing on the market. 

In  the  Al  Chodor  case,33  the  referring  court  pointed  out  that  the  language 
versions  of  Article  2(n)  of  theDublin  III  Regulation34  diverged  (emphasis 
added): 

31 

32 

Pinckernelle (n 27) para 31. 
Ibid (n 26) paras 34-43. 

33  Case  C-528/15  Policie  ČR,  Krajské  ředitelství  policie  Ústeckého  kraje,  odbor  cizinecké 

policie v Salah Al Chodor and Others EU:C:2017:213. 

34  Regulation (EU) 604/2013 of the European Parliament and the Council of 26 June 
2013 establishing the criteria and mechanisms for determining the Member States 
responsible for examining an application for international protection lodges in one 
of the Member States by a third-country national or a stateless person [2013] OJ L 
180/31. 

 
 
 
                                                 
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ES 

DE 

EN 

FR 

«riesgo  de  fuga»:  la  existencia  de  razones  basadas  en  criterios 
objetivos  definidos  por  ley  que,  en  un  caso  concreto,  permitan 
pensar  que  un  solicitante,  un  nacional  de  un  tercer  país  o  un 
apátrida sujeto a un procedimiento de traslado pueda fugarse. 

„Fluchtgefahr' das Vorliegen von Gründen im Einzelfall, die auf 
objektiven  gesetzlich  festgelegten  Kriterien  beruhen  und  zu  der 
Annahme  Anlass  geben,  dass  sich  ein  Antragsteller,  ein 
Drittstaatsangehöriger  oder  Staatenloser,  gegen  den  ein 
Überstellungsverfahren läuft, diesem Verfahren möglicherweise 
durch Flucht entziehen könnte. 

'risk  of  absconding'  means  the  existence  of  reasons  in  an 
individual case, which are based on objective criteria defined by 
law, to believe that an applicant or a third country national or a 
stateless  person  who  is  subject  to  a  transfer  procedure  may 
abscond. 

«risque  de  fuite»,  dans  un  cas  individuel,  l'existence  de  raisons, 
fondées sur des critères objectifs définis par la loi, de craindre la 
fuite  d'un  demandeur,  un  ressortissant  de  pays  tiers  ou  un 
apatride qui fait l'objet d'une procédure de transfert. 

From  a  comparison  of  these  versions,  we  can  observe  that  the  German 
language  version  of  the  provision  refers  to  objective  criteria  'laid  down  in 
legislation'. Other language versions refer to criteria defined 'by law' (in the 
general  sense).  In  addition,  the  referring  court  noted  that  the  European 
Court of Human Rights interprets the term 'law' broadly.35 According to the 
Czech court, 'that term is not limited solely to legislation, but also includes 
other sources of law'.36 

35  Also see the Opinion of the AG who sustains the concept of 'law' as referred to in 
the Regulation has an independent meaning distinct from that of the concept of 
'law'  as  referred  to  in  the  ECHR.  Salah  Al  Chodor  (n  33)  Opinion  of  AG 
Saugmandsgaard Øe, para 42. 
Salah Al Chodor (n 33) para 21. 

36 

 
 
                                                 
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When the Court started answering the question posed by the referring court, 
it claimed that a textual interpretation was not helpful in that case:  

 [...]  a  purely  textual  analysis  of  the  notion  of  'defined  by  law'  cannot 
determine  whether  case-law  or  a  consistent  administrative  practice  are 
capable of coming within that concept. In the different language versions of 
that  regulation,  the  term  equivalent  to  the  term  'loi  (legislation)'  has  a 
different scope.37 

The  Court  added  that  the  wording  used  in  some  versions  is  similar  to  the 
concept of droit (law in the general sense), which can have a wider scope than 
loi (legislation). In addition, other language versions have a more restrictive 
scope.38 The difference in scope is significant. The conclusion was that the 
objective  criteria  required  implementation  in  the  national  law  of  each 
Member State.39 Linguistic interpretation was clearly not enough in this case 
and the Court had to examine the purpose and general scheme of the rules.40 

G1 – Divergences Detected at a Later Stage 

In the ERGO Poist'ovňa case,41 a divergence appeared regarding the Czech, 
Latvian  and  Slovak  language  versions.  As  I  do  not  command  any  of 
these languages, I will limit myself to mentioning the arguments of the 
Court. It explained that in most of the language versions the provision 
'the  right  to  commission  can  be 
in  question  provided  that 
extinguished only 'if and to the extent that' it is established that the 
contract  between  the  third  party  and  the  principal  will  not  be 
executed'.42  However,  the  Czech,  Latvian  and  Slovak  language 
versions  of  the  provision  did  not  contain  wording  which  could  be 
translated as 'to the extent that'.43  

37 

38 

39 

40 

Salah Al Chodor (n 33) para 31. 
Ibid. 
Ibid para 28 
Ibid para 32. 

41  Case C-48/16 ERGO Poist'ovňa, a.s. v Alžbeta Barlíková EU:C:2017:377. 
42  ERGO Poist'ovňa (n 41) para 34. 
43  The AG enters into a bit more detail and compares the expressions in a footnote: 
See,  for  example,  the  Spanish  ('en  la  medida'),  Danish  ('i  det  omfang'),  German 
('soweit'), Estonian ('ulatuses'), French ('dans la mesure où'), Italian ('nella misura 
in  cui'),  Lithuanian  ('tik  tiek,  kiek'),  Maltese  ('sal-limiti  li'),  Dutch  ('voor  zover'), 

                                                 
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The  Court  resorted  to  metalinguistic  criteria  of  interpretation.  It  recalled 
that 'provisions of EU law must be interpreted and applied uniformly in the 
light of the versions existing in all the languages of the European Union'.44 
Here  the  Court  makes  clear  that  all  languages  constitute  the  same  legal 
instrument. It then invoked the purpose and general scheme: 

Where there is divergence between the various language versions of an EU 
legislative text, the provision in question must be interpreted by reference to 
the purpose and general scheme of the rules of which it forms part (judgment 
of  1  March  2016,  Alo  and  Osso,  C-443/14  and  C-444/14,  EU:C:2016:127, 
paragraph 27).45 

In  the  Popescu  case,46  the  Court  dealt  with  the  concept  of  'entitlement  to 
drive  granted  before  19  January  2013'.  As  the  divergence  concerned  the 
Romanian  version,  which  I  do  not  command,  I  will  not  enter  into  much 
detail.  The  provision  in  question  used  the  expression  drept  de  conducere 
acordat, including the word drept which normally refers to the right itself, not 
the document attesting a right granted, and the word acordat which literally 
means 'accorded' or 'granted', and may refer both to a right and to a document 
attesting that right.47 

In addition, both the Advocate General and the Court observed that a literal 
interpretation of the expression droit de conduire délivré in the French version 
could suggest that the wording of the said provision implies that 'only express 
entitlements to drive deriving from an instrument formally issued, generally 
in the form of an individual administrative act, before 19 January 2013 would 
not  be  affected,  in  accordance  with  that  provision,  by  the  requirements  of 
that directive'.48 

In the face of the differences between various language versions, the Court 
recalled that 'the wording used in one language version of a provision of EU 

Polish ('o ile'), Portuguese ('na medida em que'), and Romanian ('în măsura în care') 
language versions. ERGO Poist'ovňa (n 38) Opinion of AG Szpunar, para 26. 

44  ERGO Poist'ovňa (n 41) para 37. 
45 

Ibid para 37. 

46  Case C-632/15 Costin Popescu v Guvernul României and Others EU:C:2017:303.  
47 

Ibid para 32. 

48  Popescu (n 46) para 33. 

                                                 
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law  cannot  serve  as  the  sole  basis  for  the  interpretation',49  in  this  way 
confirming  the  impossibility  of  relying  on  a  single  language  version. 
'Provisions of EU law must be interpreted and applied uniformly in the light 
of the versions existing in all EU languages'.50 The Court used the determiner 
'all', which would imply that all official languages are deemed to be compared. 
Immediately after that, it stated that 'where there is divergence between the 
various language versions of an EU legislative text, the provision in question 
must be interpreted by reference to the general scheme and purpose of the 
rules of which it forms part'.51 

From  a  reading  of  the  judgement  it  is  not  possible  to  know  how  many 
languages were in fact compared. The Court used the expression 'differences 
between  various  language  versions'  without  specifying  which  ones.52  The 
Advocate General delved a bit more into the comparison. He commented on 
the wording in the French version and observed that 'an equivalent approach 
could be apparent from other language versions of that provision', adding in 
the footnote: 'See, inter alia, the Danish, German, Croatian, Portuguese and 
Slovak versions'.53 

After examining the general scheme and the purpose of the Directive,54 the 
Court concluded that following a schematic and a teleological interpretation, 
'Article 13(2) of the directive relates only to the holding of driving licences and 
official  documents  equivalent  to  them  which  expressly  authorise  their 
holders to drive'.55 Therefore, the objectives pursued by the directive and also 
the context of Article 13 led to an interpretation contrary to that proposed by 
Mr. Popescu.56 

49 

Ibid para 35. 

50  Popescu (n 46). 
51 

Ibid. 
Ibid para 34. 
Ibid, Opinion of AG Saugmandsgaard Øe, para 42. 
Ibid para 36-45. 
Ibid para 46. 
Ibid, Opinion of AG Saugmandsgaard Øe, para 40. 

52 

53 

54 

55 

56 

 
                                                 
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Moreover,  in  GE  Healthcare  case,57  there  was  a  problem  of  interpretation 
regarding Article 160 of Regulation No. 2454/93 (emphasis added): 

ES 

DE 

Cuando el comprador pague un canon o un derecho de licencia a 
un tercero, las condiciones mencionadas en el apartado 2 del 
artículo 157 sólo se considerarán cumplidas si el vendedor, o una 
persona vinculada al mismo, pide al comprador que 

Zahlt der Käufer eine Lizenzgebühr an einen Dritten, so gelten 
die Voraussetzungen des Artikels 157 Absatz 2 nur dann als 
erfüllt, wenn der Verkäufer oder eine mit diesem verbundene Person 
die Zahlung an diese dritte Person vom Käufer verlangt. 

EN  When the buyer pays royalties or licence fees to a third party, the 
conditions provided for in Article 157 (2) shall not be considered as 
met unless the seller or a person related to him requires the buyer to 
make that payment. 

FR 

Lorsque l'acheteur verse une redevance ou un droit de licence à un 
tiers,  les  conditions  visées  à  l'article  157  paragraphe  2  ne  sont 
considérées comme remplies que si le vendeur ou une personne qui 
lui est liée requiert de l'acheteur d'effectuer ce paiement. 

As  the  Advocate  General  explained  in  his  Opinion,  the  German  language 
version of Article 160 seems to refer to 'a third party separate from both the 
seller and the person related to the seller'.58 From a comparative reading it can 
be seen that none of the other language versions contains a second reference 
to the 'third party' to whom royalties or licence fees are paid.59 

The  referring  court  sought  to  know  'whether  the  condition  laid  down  in 
Article  160  of  Regulation  No.  2454/93  is  satisfied  in  a  situation  where  the 
'third  party'  to  whom  the  royalty  or  licence  fee  is  payable  and  the  'person 
related' to the seller are the same person'.60 In that regard, the applicant in 
the  main  proceedings,  GE  Healthcare,  relied  essentially  on  the  German 

57  Case C-173/15 GE Healthcare GmbH v Hauptzollamt Düsseldorf EU:C:2017:195. 
58 

Ibid EU:C:2016:621, Opinion of AG Mengozzi, para 61. 

59  GE Healthcare GmbH (n 57) para 66. 
60 

Ibid para 63. 

 
                                                 
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language  version  and  claimed  that  'the  person  requiring  payment  of  the 
royalty or licence fee and the third party to whom the royalty or licence fee is 
payable cannot be identical'.61 

In order to answer the question, the Court first reminded that the wording in 
one  language  version  cannot  constitute  the  only  basis  for  interpretation 
because 'such an approach would be incompatible with the requirement that 
EU law be applied uniformly'.62 In addition, it emphasised that 'where there 
is  a  divergence  between  the  various  language  versions',  it  is  necessary  to 
examine the general scheme and the purpose of the rules. With this reasoning 
the Court seems to confirm that when we are faced with divergences between 
language versions, metalinguistic criteria of interpretation are required.  

In the Opinion, the Advocate General sustained that the main problem of 
interpretation was not the fact that the German version added the expression 
'third party': 

This  is  not,  however,  the  deciding  factor.  The  obligation  on  the  buyer  to 
make 'that payment' obviously refers to the payment of royalties or licence 
fees which the buyer is required to make to the 'third party'. 

Both the Advocate General and the Court explained that what mattered in 
fact was not so much 'the person to whom the payment of royalties or licence 
fees  is  made'.63  The  important  point  was  'whether  or  not  the  buyer  of  the 
imported  goods  is  able  to  acquire  them  from  the  seller  without  paying 
royalties or licence fees'.64 The Court concluded that it was 'for the national 
court to ascertain whether that is the position in the main proceedings'.65 

Finally,  in  the  Vilkas  case,66  there  was  a  certain  divergence  between  the 
various  language  versions  of  Article  23(3)  of  the  Framework  Decision  as 
regards the conditions for applying the rule set out in the first sentence of 
that provision. 

61 

Ibid para 64. 

62  GE Healthcare GmbH (n 57) para 65. 
63 

Ibid EU:C:2016:621, Opinion of AG Mengozzi, para 66. 
Ibid. 

64 

65  GE Healthcare GmbH (n 57) para 69. 
66  Case C-640/15 Minister for Justice and Equality v Tomas Vilkas EU:C:2017:39. 

                                                 
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ES 

DE 

EN 

FR 

3.  Cuando  cualquier  circunstancia  ajena  al  control  de  alguno  de  los 
Estados miembros afectados impida entregar a la 

(3) Ist die Übergabe der gesuchten Person innerhalb der in Absatz 
2 genannten Frist aufgrund von Umständen, die sich  dem Einfluss 
der  Mitgliedstaaten 
sich  die 
entziehen,  unmöglich, 
vollstreckende  und  die  ausstellende  Justizbehörde  unverzüglich 
in  Verbindung  und  vereinbaren  ein  neues 
miteinander 
Übergabedatum. In diesem Fall erfolgt die Übergabe binnen zehn 
Tagen nach dem vereinbarten neuen Termin. 

setzen 

3. If the surrender of the requested person within the period laid 
down in paragraph 2 is prevented by circumstances beyond the control 
of  any  of  the  Member  States,  the  executing  and  issuing  judicial 
authorities  shall  immediately  contact  each  other  and  agree  on  a 
new  surrender  date.  In  that  event,  the  surrender  shall  take  place 
within 10 days of the new date thus agreed. 

3.  Si  la  remise  de  la  personne  recherchée,  dans  le  délai  prévu  au 
paragraphe  2,  s'avère  impossible  en  vertu  d'un  cas  de  force  majeure 
dans  l'un  ou  l'autre  des  États  membres,  l'autorité  judiciaire 
d'exécution  et 
judiciaire  d'émission  prennent 
immédiatement  contact  l'une  avec  l'autre  et  conviennent  d'une 
nouvelle date de remise. Dans ce cas, la remise a lieu dans les dix 
jours suivant la nouvelle date convenue. 

l'autorité 

The Court observed that the Greek, French, Italian, Portuguese, Romanian 
and  Finnish  versions  of  that  provision  made  the  application  of  the  rule 
conditional on the impossibility to carry out the surrender by reason of a case 
of  force  majeure  in  one  of  the  Member  States  concerned.  However,  other 
language versions of the same provision, such as the Spanish, Czech, Danish, 
German,  Greek,  English,  Dutch,  Polish,  Slovak  and  Swedish  versions, 
referred instead to it not being possible to carry out the surrender on account 
of circumstances beyond the control of the Member States concerned.67 

67  Vilkas (n 66) para 46. 

 
                                                 
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The Court recalled the need for uniform interpretation and the impossibility 
to consider the text in isolation: 

The  need  for  a  uniform  interpretation  of  a  provision  of  EU  law  makes  it 
impossible for the text of a provision to be considered, in case of doubt, in 
isolation but requires, on the contrary, that it should be interpreted on the 
basis of both the actual intention of the legislature and the objective pursued 
by  the  latter,  in  the  light,  in  particular,  of  the  versions  drawn  up  in  all 
languages.68 

Here the Court highlighted the need to consider 'the actual intention of the 
legislature',  taking  into  account  all  language  versions.  After  analysing  the 
origin  of  the  provision  in  question,69  the  Court  concluded  that  expression 
used in Article 11(3) referred to a situation which could not have been foreseen 
and could not have been prevented, as the concept of force majeure is usually 
understood.70 

Group 2 – Soft Cases: Divergences Not Treated as a Problem of Interpretation 

G2 – Divergences Detected at an Early Stage 

In the Khorassani case,71 the referring court detected some divergence and the 
Court acknowledged it but did not treat it as a problem of interpretation. 

The  provision  in  question  is  Section  A  of  Annex  I  to  Directive  2004/39 
(emphasis added): 

ES 

DE 

Recepción y transmisión de órdenes de clientes en relación con uno 
o más instrumentos financieros. 

Annahme und Übermittlung von Aufträgen, die ein oder mehrere 
Finanzinstrument(e) zum Gegenstand haben. 

ENF  Reception and transmission of orders  in relation to one or more 

financial instruments. 

68  Vilkas (n 66) para 47. 
69 
Ibid paras 48-51. 
Ibid para 51-52. 

70 

71  Case C-678/15 Mohammad Zadeh Khorassani v Kathrin Pflanz EU:C:2017:451. 

                                                 
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FR 

Réception  et  transmission  d'ordres  portant  sur  un  ou  plusieurs 
instruments financiers. 

The Court explained that depending on the language version, the terms 'in 
relation to' may suggest a more or less direct link between the orders and the 
financial instrument(s).72 

The Court used a concessive clause to clarify the question by comparing the 
different language versions:  

[...] 'although the referring court observes a certain divergence between the 
different language versions [...] it should be noted that the term 'order' […] 
remains the same in the language versions cited by the referring court, being 
the German-, Spanish-, English- and French-language versions'. [...]73  

The  Court  contended  that  the  term  'order'  remained  the  same  in  the 
language  versions  cited  by  the  referring  court,  being  the  German,  Spanish, 
English  and  French  language  versions.74  It  concluded  that  the  words  'in 
relation to one or more financial instruments' merely served to specify which 
type of order was being referred to, that is to say, the orders relating to the 
purchase or the sale of such financial instruments.75 

In the NEW WAVE CZ case,76 it was also the referring court that noted some 
differences between the various language versions of Directive 2004/48. The 
Czech,  English  and  French  versions  of  the  directive  used  respectively  the 
words 'in connection with proceedings' (v souvislosti s řízením), 'in the context 
of proceedings', and 'within the framework of proceedings' (dans le cadre d'une 
action).  According  to  that  Court,  the  French  version  introduced  a  closer 
connection between the proceedings and the application for information.77 
The  Court  removed  the  divergence  by  comparing  the  different  language 
versions:  

72  Khorassani (n 71) para 27. 
73 

Ibid. 
Ibid. 
Ibid para 28. 

74 

75 

76  Case C-427/15 NEW WAVE CZ, a.s. v ALLTOYS, spol. s r. o. EU:C:2017:18. 
77 

Ibid para 16. 

 
                                                 
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[...] as the referring court observes, some language versions [...] do indeed use 
expressions  which  could  be  interpreted  as  being  of  a  narrower  scope  than 
those  used  in  other  language  versions  [...].  The  fact  remains,  however,  [...] 
that it does not follow from any of those language versions that [...]. 

In order to confirm its interpretation, the Court also analysed the wording of 
Article 8(1) of Directive 2004/4878 and the objective of the Directive.79 

G2 – Divergences Detected at a Later Stage 

Finally, in the Onix Asigurări case,80 the Court recognised that there was some 
divergence between the language versions of Article 40(6) of Directive 92/49, 
but that the linguistic divergence was not the main problem of interpretation. 

ES 

DE 

EN 

6. Los apartados 3, 4 y 5 no afectarán a la facultad de los Estados 
miembros  interesados  de  adoptar,  en  casos  de  urgencia,  las 
medidas apropiadas para prevenir las irregularidades cometidas en su 
territorio. Ello implica la posibilidad de impedir que una empresa de 
seguros  siga  celebrando  nuevos  contratos  de  seguros  en  su 
territorio. 

(6)  Die  Absätze  3,  4  und  5  berühren  nicht  die  Befugnis  der 
Mitgliedstaaten,  in  dringenden  Fällen  geeignete  Maßnahmen  zu 
ergreifen,  um  Unregelmässigkeiten 
ihrem  Staatsgebiet  zu 
verhindern oder zu ahnden. Dies schließt die Möglichkeit ein, ein 
Versicherungsunternehmen 
neue 
zu 
Versicherungsverträge in ihrem Staatsgebiet abzuschließen. 

hindern,  weitere 

in 

6. Paragraphs 3, 4 and 5 shall not affect the emergency power of the 
Member  States  concerned  to  take  appropriate  measures  to 
prevent irregularities within their territories. This shall include the 
possibility of preventing insurance undertakings from continuing 
to conclude new insurance contracts within their territories. 

FR 

6.  Les  paragraphes  3,  4  et  5  n'affectent  pas  le  pouvoir  des  États 
membres  concernés  de  prendre,  en  cas  d'urgence,  des  mesures 

78  NEW WAVE CZ (n 76) para 22. 
79 

Ibid para 23. 

80  Case  C-559/15  Onix  Asigurări  SA  v  Istituto  per  la  Vigilanza  Sulle  Assicurazioni 

(IVASS) EU:C:2017:316. 

                                                 
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appropriées  pour  prévenir  les  irrégularités  commises  sur  leur 
territoire. Ceci comporte la possibilité d'empêcher une entreprise 
d'assurance  de  continuer  à  conclure  de  nouveaux  contrats 
d'assurance sur leur territoire. 

The Court pointed out that 'certain language versions of that provision, in 
particular those in Spanish and French, refer to irregularities 'committed' in 
the territory of the Member State concerned, which may indicate that this 
provision applies only where irregular acts have already been carried out'.81 

Then  the  Court  invoked  the  need  for  uniform  interpretation  of  EU 
regulations  and  contended  that  'where  there  are  doubts',  the  text  of  a 
provision  cannot  be  'considered  in  isolation  but  requires,  on  the  contrary, 
that it should be interpreted and applied in the light of the versions existing 
in the other official languages'.82 Here the Court used the 'criterion of doubt', 
as it has been designated by Mattias Derlén.83 

From a comparative reading of the Article, the Court concluded that 'all the 
language versions use the verb 'to prevent' or a similar word to describe the 
subject matter of the measures which may be adopted'. As a consequence, the 
provision refers to the adoption of measures to prevent irregularities in the 
future.84  It  does  not  make  sense  to  interpret  it  as  irregular  acts  that  have 
already been carried out.85 

The Court reconciled the diverging versions by comparing them. However, 
in order to answer the question posed by the referring court it highlighted 
that 'the wording of Article 40(6) of Directive 92/49, considered in isolation, 

81  Onix Asigurări (n 80) para 38. 
82 

Ibid para 39. 

83  Mattias  Derlén,  Multilingual  Interpretation  of  European  Union  Law  (Kluwer  Law 
International 2009) 32; Mattias Derlén, 'In Defence of (Limited) Multilingualism: 
Problems and Possibilities of the Multilingual Interpretation of European Union 
Law in National Courts' in Anne-Lise Kjær, Silvia Adamo (eds), Linguistic Diversity 
and European Democracy (Ashgate 2011) 145. 

84  Onix Asigurări (n 80) para 40. 
85 

In the Opinion, the AG did not compare so it is not possible to provide any further 
insight into the matter. 

 
                                                 
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does  not  enable  an  answer  to  be  given  to  the  question  referred.  In  those 
circumstances, it is necessary to consider the context in which that provision 
occurs, and the objectives pursued by that directive'.86 

Group 3: No Divergence but Comparison is Used as Confirmation 

In this group I have analysed three cases of direct actions before the General 
Court and one case of a reference for a preliminary ruling. The Court used 
comparison to confirm an interpretation, usually by stating that all language 
versions converged in meaning. 

In Ball Beverage Packaging Europe v EUIPO – Crown Hellas Can (Canettes),87 it 
used  the  following  expression:  'that  finding  follows  also  from  Article  [...], 
which in all the language versions, refers to [...]'. In Deza v ECHA,88 the Court 
used comparison to support an interpretation, although it did not state that 
all  language  versions  converged.89  In  Hernández  Zamora  v  EUIPO  -  Rosen 
Tantau (Paloma),90 the Spanish version, which in that case was the authentic 
version,91 was compared with the other versions to confirm an interpretation: 
'the  Spanish  version  is  also  consistent  with  the  language  versions  of  the 
wording  of  the  goods  covered  by  the  earlier  mark,  other  than  the  English 
version'.92 In Rosneft,93 the Court observed that 'none of the language versions 
of Article [...] expressly refers to the 'processing of payments'. That being the 

86  Onix Asigurări (n 80) para 41. 
87  Case T-9/15 Ball Beverage Packaging Europe Ltd v European Union Intellectual Property 

Office EU:T:2017:386. 

88  Case T-115/15 Deza, a.s. v European Chemicals Agency EU:T:2017:329. 
89 

Ibid and EU:T:2017:329, para 173. 

90  Case  T-369/15  Hernández  Zamora,  SA  v  European  Union  Intellectual  Property  Office 

EU:T:2017:106. 

91  The Court explained as follows: 'Article 120(3) of Regulation No 207/2009 provides 
that 'in cases of doubt, the text in the language of [EUIPO] in which the application 
for  the  EU  trade  mark  was  filed  shall  be  authentic'.  In  the  present  case,  it  is 
therefore the Spanish version of the wording of the goods covered by the earlier 
mark  that  is  authentic'.  Case  T-369/15  Hernández  Zamora,  SA  v  European  Union 
Intellectual Property Office EU:T:2017:106, para 40. 

92  Zamora (n 90). 
93  Case  C-72/15  PJSC  Rosneft  Oil  Company  v  Her  Majesty's  Treasury  and Others 

EU:C:2017:236. 

                                                 
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case, reference must be made to the general structure and objectives of that 
regulation'. 

III. LEGAL CERTAINTY AND METHODS OF INTERPRETATION  

issues  of 

This  section  explores  the 
in  relation  to 
multilingualism.  One  can  think  legal  certainty  is  incompatible  with 
multilingualism, but I sustain both concepts can be balanced. I then mention 
different methods of interpretation that the CJEU applies and I explain my 
own classification of interpretive techniques to solve divergences.  

legal  certainty 

1. A Note on Legal Certainty 

Law complies with the function of legal certainty when those to whom legal 
norms are addressed can be informed as to where they stand, so that they can 
act  with  full  knowledge  of  the  consequences  of  their  behaviour.94  Legal 
certainty requires that legal norms be clear (foreseeable) and accessible.95  

On the one hand, multilingualism allows access to EU legislation in all official 
languages, thus ensuring a central aspect of legal certainty. The concrete task 
of  making  multilingual  legislation  is  done  thanks  to  translation.  Without 
translation there would be no EU legislation. On the other hand, the need to 
compare different language versions can be seen as the impossibility to rely 
on a single language version. However, systematic comparison between the 
twenty-four  language  versions  is  very  difficult  and  this  applied  study  has 
shown that even the CJEU does not use comparison on a routine basis. As a 
consequence,  one  could  argue  that  the  impossibility  to  rely  on  a  single 
language  version  is  detrimental  to  legal  certainty.  Nevertheless,  the 
requirement  to  compare  helps  to  balance  the  fact  that  EU  legislation  is 
multilingual,  and  divergences  between  different  language  versions  are 
sometimes  inevitable.  As  with  many  principles  in  law,  in  some  situations 
there will be conflicting principles and it is not a question of eliminating one 
or  the  other;  it  is  rather  a  matter  of  finding  a  balance  between  them.  This 
following graph summarises this idea: 

94 

Josep Joan Moreso and Josep Maria Vilajosana, Introducción a la teoría del derecho 
(Marcial Pons 2004). 
95  Pacho Aljanati (n 2) 103. 

                                                 
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Figure 4: Balancing legal certainty and multilingualism 

Legal Certainty 

EU law 

Clear 
(foreseeable) 

Divergences between 
different language 
version are inevitable 

All versions constitute 
the same legal instrument 

Accessible in all 
official languages 

Impossibility to rely 
on a single language 
version 

Need to compare 

Susan Šarčević remarked that 'whether and to what extent the authentic texts 
of  EU 
legislation  actually  have  the  same  meaning  is  a  matter  of 
interpretation'.96  The  CJEU  is  responsible  for  interpreting  EU  legislation 
(Art. 267 TFEU) based on the premise that no language version prevails over 
the others and it is necessary to interpret them uniformly.97 

In this applied study there are three cases that touch upon the question of 
legal certainty most directly. In Popescu, the applicant relied on the Romanian 
language  version  for  its  interpretation,  but  the  Court  then  arrived  at  a 
conclusion  contrary  to  that  proposed  by  Popescu.  In  GE  Healthcare,  the 
applicant relied on the German language version, which turned out to be the 
only  version  that  differed  from  the  rest.  These  parties  learned  that  their 
arguments could not be based only on the wording in their national language. 

96 

97 

Susan Šarčević, 'Multilingual Lawmaking and Legal (Un)Certainty in the European 
Union'(2013) 3(1) International Journal of Law, Language and Discourse 1. 
See Case 19/67 Van der Vecht EU:C:1967:49, CILFT case  (n 2) and Case 30/77 Regina 
v Bouchereau EU:C:1977:172, para 14. 

 
                                                 
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The Sharda Europe case is more complex and it illustrates the idea of balance 
exposed above. First it is necessary to make a reconstruction of the facts. 

1. 

2. 

3. 

4.  

5.  

On  14  January  2009,  Sharda  submitted  an  application  for  re-
evaluation of the authorisation it had for the placing on the market 
of  a  plant protection  product  which  contained  one  of  the  active 
substances listed in the Annex to that directive. That application 
was granted by the competent national authorities. 

Syngenta  brought  an  administrative  action  seeking  to  have  the 
authorisation issued for the plant protection product withdrawn. 
The  administrative  action  was  brought  before  the  Secretaría 
General  Técnica  del  Ministerio  de  Medio  Ambiente,  Rural  y 
Marino  (Technical  General  Secretariat  of  the  Ministry  for 
Environmental, Rural and Marine Affairs, Spain). Syngenta alleged 
that  the  application  for  re-evaluation  of  that  product  had  been 
submitted  after  31  December  2008.  It  claimed  that  this  date 
constituted the deadline for the submission of such an application 
for  re-evaluation  under  Article  3(2)  of  Directive  2008/69.  The 
Technical General Secretariat dismissed the action. 

Syngenta  brought  an  appeal  against  that  decision  before  the 
Tribunal  Superior  de  Justicia  de  Madrid  (High  Court  of  Justice, 
Madrid,  Spain).  This  High  Court  annulled  the  re-evaluation 
procedure on the ground that the application for re-evaluation had 
been submitted after the expiry of the deadline set in Article 3(2) 
of Directive 2008/69. 

Sharda  brought  an  appeal  against  that  judgement  before  the 
Tribunal  Supremo  (Supreme  Court,  Spain).  It  claimed  that  this 
date  did  not  preclude  the  submission  of  applications  for  re-
evaluation after 31 December 2008. 

The Tribunal Supremo (Supreme Court) was not certain whether 
this date constituted a deadline for carrying out the re-evaluation 
or  for  listing  the  active  substances.  It  decided  to  stay  the 

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33 

proceedings and pose the question to the CJEU for a preliminary 
ruling. 

6.  

The  CJEU  finally  stated  that  this  date  corresponded  to  the 
deadline by which all the active substances contained in that plant 
protection  product  had  to  be  included  on  the  list  in  Annex  I  to 
Directive 91/414. 

Thanks to comparison between different language versions it was possible to 
bring to light that Sharda's claim was right. The Tribunal Superior de Justicia 
annulled  the  re-evaluation  procedure  but  this  was  not  the  right 
interpretation.  If  it  had  compared  the  Spanish  version  with  other  versions 
the divergence would have come to light earlier. This case is a good example 
of how comparison can guarantee uniform application of EU law. 

2. Methods of Interpretation 

In the literature, it is generally agreed that there are three main methods that 
the CJEU applies: literal, systematic and teleological.98 Authors sometimes 
use different terminology, but the essence of the methods is practically the 
same. Some legal scholars add two more methods: historical and comparative 
law  interpretations.  For  example,  Hans  Kutscher99  refers  to 
literal 
interpretation, 
interpretation, 
interpretation, 
historical  interpretation  and  comparative  law  interpretation.  Similarly, 

teleological 

schematic 

98 

See,  for  instance,  Anna  Bredimas,  Methods  of  Interpretation  and  Community  Law 
(n  13);  Joxerramon  Bengoetxea,  Neil 
(North-Holland  1978);  Bengoetxea 
MacCormick and Leonor Moral Soriano, 'Integration and Integrity  in the Legal 
Reasoning of the European Court of Justice' in Gráinne de Búrca and Joseph H. H. 
Weiler (eds), The European Court of Justice (Oxford University Press 2001); Giulio 
Itzcovich,  'The  Interpretation  of  Community  Law  by  the  European  Court  of 
Justice'  (2009)  10(5)  German  Law  Journal  534;  Elina  Paunio,  Legal  certainty  in 
multilingual EU law: language, discourse and reasoning at the European Court of Justice 
(Ashgate  2013);  Suvi  Sankari,  European  Court  of  Justice  Legal  Reasoning  in  Context 
(Europa Law Publishing 2013). 

99  Hans  Kutscher,  Methods  of  interpretation  as  seen  by  a  judge  at  the  Court  of  Justice 

(Luxembourg 1976). 

 
                                                 
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Neville Brown and Francis G. Jacobs100 as well as Albertina Albors Llorens101 
talk  about  literal  interpretation,  contextual  interpretation,  teleological 
interpretation,  historical  interpretation  and  comparative  law  as  aids  to 
interpretation.  Isabel  Schübel-Pfister102  uses  the  following  categories: 
Wortlautauslegung,  systematische  Auslegung,  teleologische  Auslegung,  historische 
Auslegung, and Rechtsvergleichende Auslegung.103  

When  dealing  with  divergences  between  various  language  versions,  most 
authors have divided the methods into two groups: interpretation that uses 
linguistic arguments and interpretation that uses arguments that go beyond 
the  linguistic  level.  The  terminology  used  in  the  literature  also  varies.  For 
example,  Pierre  Pescatore104  divides  the  criteria  into  solution  réductrice  and 
solution  métalinguistique,105  and  Baaij  refers  to  the  literal  approach  and  the 
teleological  approach.106  Derlén,107  makes  a  more  detailed  analysis  of  the 
methods  and  establishes 
reconciliation, 
reconciliation  and  examination  of  the  purpose,  and  radical  teleological 
method.  

three  categories:  classical 

100  L. Neville Brown, Francis G. Jacobs, The Court of Justice of the European Communities 

(3rd ed.) (Sweet & Maxwell 1989). 

101  Albertina Albors Llorens, 'The European Court of Justice, more than a teleological 

102 

court' (1999) 2 Cambridge Yearbook of European Legal Studies 373. 
Isabel Schübel-Pfister, Sprache und Gemeinschaftsrecht: die Auslegung der mehrsprachig 
verbindlichen  Rechtstexte  durch  den  Europäischen  Gerichtshof  (Duncker  &  Humblot 
2004). 

103  Similarly,  Buck  refers  to  grammatikalische  Auslegung,  systematische  Auslegung,  
teleologische  Auslegung  and  historische  Auslegung.  Carsten  Buck,  Über  die 
Auslegungsmethoden des Gerichtshofs der Europäische Gemeinschaft (Peter Lang 1997). 

104  Pierre  Pescatore,  'Interprétation  des  lois  et  conventions  plurilingues  dans  la 

Communauté européenne' (n 7). 

105  Berteloot  uses  the  same  categories  in  German:  reduzierende'  Methode  and  meta-
'Die  Europäische  Union  und  ihre 
linguistische  Methode.  Pascale  Berteloot, 
mehrsprachigen Rechtstexte' in Isolde Burr & Friedrich Müller (eds), Rechtssprache 
Europas (Duncker & Humblot 2004). 

106  Cornelis Jaap W. Baaij, 'Fifty years of Multilingual Interpretation in the European 
Union' (n 13); Cornelis Jaap W. Baaij, Legal integration and language diversity: The case 
for  source-oriented  EU  translation  (Digital  Academic  Repository,  University  of 
Amsterdam 2015). 

107  Derlén, Multilingual Interpretation of European Union Law (n 83). 

                                                 
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Multilingual EU Law 

35 

I  refer  to  linguistic  interpretation  and  metalinguistic  interpretation. 
Metalinguistic  interpretation  is  equivalent  to  the  teleological-systematic 
interpretation in that it goes beyond the words, also called 'teleo-systemic' 
interpretation.108  As Kutscher affirms, teleological interpretation  is closely 
linked  to  schematic  interpretation  and  it  is  difficult  to  draw  a  clear  line 
between them.109 

This applied study shows that linguistic arguments were used in the cases in 
Group 2 (soft cases): 

Linguistic Interpretation  

NEW WAVE 
CZ 

Onix Asigurări 

Khorassani 

* Comparison to clear the divergence. 

*  The  need  for  a  uniform  interpretation  of  EU 
regulations  makes  it  impossible,  where  there  are 
doubts, for the text of a provision to be considered in 
isolation but requires, on the contrary, that it should be 
interpreted  and  applied  in  the  light  of  the  versions 
existing 
languages. 
other 
the 
* Comparison to clear the divergence.  

official 

in 

* It is necessary to consider  not  only  its  wording  but 
also  the  context in which it occurs and the objectives 
is  part.  
pursued  by 
* Comparison to clear the divergence.  

rules  of  which 

the 

it 

Throughout  the  case-law,  the  CJEU  settled  the  normative  requirement  to 
compare  different  language  versions  by  claiming  that  when  interpreting  a 
certain provision, 'where there are doubts', we must do it 'in the light of the 
versions existing in the other official languages' (as in the Onix Asigurări case). 

108 

Joxerramon Bengoetxea The Legal Reasoning of the European Court of Justice (n 14) 
250. 

109  Hans Kutscher, Methods of interpretation as seen by a judge at the Court of Justice (n 99) 

I-40. 

 
                                                 
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In other earlier cases the Court did not mention 'in case of doubt' or 'where 
there are doubts'. In Kraaijeveld it referred to comparison as a requirement: 
'interpretation of a provision of Community law involves a comparison of the 
language versions.'110 In addition, in the Ferriere case, the Court stated that all 
language versions must be consulted even if the version at hand is clear and 
unambiguous in isolation.111 

On  the  contrary,  metalinguistic  arguments  were  used  in  the  Group  1  cases 
(hard cases).  

Metalinguistic Interpretation  

Popescu,  
GE Healthcare, 
ERGO 
Poist'ovňa 

*  The  wording  used  in  one  language  version  of  a 
provision of EU law  cannot  serve  as  the  sole  basis  for 
the interpretation of that provision or be given priority 
over the other language versions. 
*  The  wording  used  in  one  language  version  of  a 
provision of EU law  cannot  serve  as  the  sole  basis  for 
the  interpretation  of  that  provision,  or  be  made  to 
override the other language versions in that regard. 
*  Provisions  of  EU  law  must  be  interpreted  and  applied 
uniformly in the light of the versions existing in all EU 
languages. 
*  Where  there  is  divergence  between  the  various 
language versions of an EU legislative text, the provision 
in  question  must  be  interpreted  by  reference  to  the 
general  scheme  and  purpose  of  the  rules  of  which  it 
forms part. 

110  Case  C-72/95  Aannemersbedrijf  P.K.  Kraaijeveld  BV  e.a.  v  Gedeputeerde  Staten  van 

Zuid-Holland, EU:C:1996:404, para 25. 

111  Case C-219/95 P Ferriere Nord v Commission, EU:C:1997:375, para 15. 

                                                 
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37 

Sharda Europe 

Pinckernelle 

Al Chodor 

Vilkas 

*  The  wording  used  in  one  language  version  of  a 
provision of EU law  cannot  serve  as  the  sole  basis  for 
the interpretation of that provision or be given priority 
over the other language versions. 
*  The  need  for  uniform  application  and,  therefore,  for 
uniform interpretation of an EU measure precludes one 
version  of  the  text  being  considered  in  isolation,  but 
requires that the measure be interpreted by reference to 
the general scheme and purpose of the rules of which it 
forms part. 

* For the purpose of interpreting a provision of EU law it 
is necessary to consider not only its wording but also the 
context in which it occurs and the objectives pursued by 
the rules of which it is part. 
* Comparison revealed a divergence 
* Analysis of the context to clarify the question 

* Where the various language versions differ,  the  scope 
of the provision in question cannot be determined on 
the  basis  of  an  interpretation  which  is  exclusively 
textual,  but  must  be  interpreted  by  reference  to  the 
purpose  and  general  scheme  of  the  rules  of  which  it 
forms part. 

* The need for a uniform interpretation of a provision of 
EU law makes it impossible for the text of a provision to 
be considered, in case of doubt, in isolation but requires, 
on the contrary, that it should be interpreted on the basis 
of both the actual intention of the legislature and the 
objective  pursued  by  the  latter,  in  light,  in particular, 
of the versions drawn up in all languages. 

In Popescu, GE Healthcare, ERGO Poist'ovňa and Sharda Europe, the Court used 
practically  the  same  arguments.  In  Pinckernelle  and  Al  Chodor,  the  Court 
mentions that textual interpretation is not enough: we need to move on to 
the context and purpose of the rules. Finally, in Vilkas, the Court resorted to 
the intention of the legislature. In fact, the Court analysed the history of the 
provision  in  order  to  figure  out  what  the  intention  was.  The  Court  first 
observed that the wording used in the article in question had its origin in a 

 
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previous Convention.112 Then, different language versions of this Convention 
were compared. The Court also examined the explanatory report relating to 
the Convention in its various language versions.113 In addition, the Court also 
studied the explanatory memorandum to the Commission's proposal that led 
to the adoption of the Framework Decision.114 The Court was then able to 
deduce the intention of the legislature: 'These various factors contribute to 
demonstrating that the use in various language versions of that latter concept 
does not indicate that the EU legislature intended to' [...].115 

IV. TYPES OF DIVERGENCES 

This  section  focuses  on  the  types  of  divergences  that  came  to  light  in  the 
study  of  the  case-law.  In  Group  1  and  Group  2,  I  examined  the  types  of 
linguistic  divergences  that  appear  between  different  language  versions  of  a 
piece of legislation. Classifying the types of divergences is not easy and some 
authors acknowledge the difficulty of classification in linguistics:  

A language is vastly more complex than an automobile engine, and linguistic 
items, being multi-functional, can be looked at from more than one point of 
view, and hence given more than one label on different occasions even within 
the same analytical framework.116  

Therefore, it is not possible to establish rigid categorisation. However, there 
are  some  studies  that  provide  a  classification  of  divergences  or  of  types  of 
translation problems. Among the main works that have dealt with this issue, 
Kerstin  Loehr  provides  a  classification  between  two  main  groups: 
Divergenzen  im  Text  and  Divergenzen  im  Denken.117  Divergenzen  im  Text  are 

112  Nord v Commission (n 111) para 48. 
113 

114 

Ibid para 50. 
Ibid para 51. 
Ibid para 52. 
116  Sharon  O'Brien, 

115 

'Controlling  Controlled  English.  An  Analysis  of  Several 
Controlled Language Rule Sets Obtaining the Rule Sets', Conference proceedings: 
Joint Conference combining the 8th International Workshop of the European Association 
for Machine Translation and the 4th Controlled Language Application Workshop (EAMT 
and  CLAW)  2003  106,  citing  Thomas  Bloor  and  Meriel  Bloor,  The  Functional 
analysis of English: a Hallidayan approach (Arnold 1995) 15. 

117  Kerstin  Loehr,  Mehrsprachigkeitsprobleme  in  der  Europäischen  Union  (Peter  Lang 

1997) 57. 

                                                 
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textual divergences which are possible to avoid, and  Divergenzen im Denken 
are conceptual divergences which are harder to avoid. 

Both  Šarčević118  and  Schübel-Pfister119  mention  the  classification  proposed 
by Loehr. Šarčević remarks that divergences can be studied within the lexical 
field, but that they can also appear in the syntactical and pragmatic fields.120 
Schübel-Pfister  explains  that  Loehr's 
linguistic  perspective  coincides 
partially with a legal perspective. She also distinguishes between Divergenzen 
im  Text  and  Divergenzen  im  Sinn  but  calls  them  Begriffsdivergenzen  and 
Bedeutungsdivergenzen  respectively.  She  explains  that  Begriffsdivergenze  can 
(textual  divergence)  and 
to  as  Textdivergenzen 
also  be 
Bedeutungsdivergenzen (conceptual divergence) as Sinndivergenzen.121  

referred 

Geert  Val  Calster122  refers  to  'obscurities'  in  the  texts.  He  proposes  the 
following categories:  

-  one  version  says  something  different  than  the  other(s);  there  is  a  clear 
conflict between different versions;  

- one text uses a word without any meaning, or with an uncertain sense; the 
corresponding word in the other(s) is clear;  

- in one text, a word is used with two or more meanings; the other version's 
term contains only one of those meanings;  

- the word used in one text has a wider meaning than the corresponding word 
in the other(s) and a text uses a category which does not figure in the other(s).  

Pablo  Dengler  provides  a  similar  classification  to  that  of  Van  Calster.  He 
looks at the degree of divergence. If the language versions differ completely, 
he calls it divergencia abierta (open divergence). If the language versions do not 
differ completely but their scope is somewhat different, he calls it divergencia 

118  Susan Šarčević, 'Die Übersetzung von mehrsprachigen EU-Rechtsvorschriften' in 
Maurizio Gotti and Susan Šarčević, Linguistic Insights 46 (Peter Lang 2006).  
Isabel Schübel Pfister, Sprache und Gemeinschaftsrecht (n 102). 

119 

120  Šarčević (n 118) 125. 
121  Schübel-Pfister (n 102) 106. 
122  Geert  Van  Calster,  'The  EU's  Tower  of  Babel  —  The  Interpretation  by  the 
European Court of Justice of Equally Authentic Texts Drafted in more  than one 
Official Language' (1997) 17(1) Yearbook of European Law 374. 

                                                 
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parcial  (partial  divergence).123  He  includes  conceptual  divergences  and 
divergences because of terminological asymmetry in the same group (partial 
divergences).  However,  if  there  is  terminological  asymmetry  or  if  a  certain 
element is omitted in a language version, the result can be that the language 
versions  have  completely  opposite  meanings  and  would  therefore  be 
considered  'open  divergence'.  For  this  reason,  Dengler's  classification 
according to the degree of disparity may be difficult to apply systematically. 

In addition, Lawrence Solan mentions that there can be problems of 'word 
choice'  or  'grammatical  nuances'.124  In  one  of  his  works,  Baaij  divides  the 
types of discrepancies into 'translation errors' and 'semantic scope'.125 In the 
case of 'translation errors', discrepancies entail the use of distinctly different 
terms in the various language versions. He claims that 'even when the CJEU 
does not explicitly believe that a translation error is to blame, it seems that 
the  CJEU  is  generally  more  likely  to  treat  these  types  of  discrepancies  as 
'textual flaws''.126  However, in my opinion, translation is not always to blame 
when  there  are  textual  flaws.  This  category  of  'translation  errors'  does  not 
seem to represent a type of linguistic divergence. Whether the problem was 
caused  by  an  inaccurate  translation  is  another  question  that  should  be 
resolved  afterwards.  Regarding  the  'semantic  scope',  Baaij  points  out  that 
'differences in the scope of terminology in the various language versions may 
not be an error, but merely a natural and unavoidable trait of translation'.127 
'semantic  and  syntactic 
In  a 
discrepancies'.128 

later  work  he  divides  the  case  into 

Most authors tend to distinguish divergences that appear at a grammatical-
syntactical  level  and  those  that  appear  at  a  lexical-semantic  level.  Both 

123  Pablo Dengler, 'Derecho de la UE y multilingüismo: el problema de las divergencias 
entre versiones lingüísticas' in Alonso Araguás et al,  Translating  Justice (Comares 
2010) 83. 

124  Lawrence Solan, 'Statutory Interpretation in the EU: the Augustinian Approach' 
in Frances Olsen, Alexander Lorz, R. and Dieter Stein, Translation Issues in Language 
and Law (Palgrave Macmillan 2009).  

125  Cornelis Jaap W. Baaij, 'Fifty years of Multilingual Interpretation in the European 

Union' (n 13). 

126  Ibid 229. 
127 
Ibid. 

128  Baaij (n 106). 

                                                 
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Loehr129 and Šarčević130 suggest considering the three areas within the field of 
semiotics:  syntax  (or  syntactics),  semantics  and  pragmatics.  This  threefold 
classification 'goes back to Peirce, but was first drawn and made familiar by 
Morris'.131  The  classification  I  propose  is,  therefore,  not  guided  strictly 
according to the three fields (syntax, semantics and pragmatics) but they are 
all related to it. The most structural-systemic aspects of language are grouped 
under 
'structural-grammatical  divergences',  while  the  lexical  level  of 
discourse  is  described  under  'lexical-conceptual  divergences'.  I  therefore 
classify divergences according to:  

1) Structural-grammatical divergences  

2) Lexical-conceptual divergences 

As the cases were described in detail in section 2, I summarise the types of 
divergences in the following tables. 

1. Structural-Grammatical Divergences 

Addition of syntactic unit in one language version 

GE Healthcare 

The German version contained the additional 
term Zahlung an diese dritte Person. 

Other aspects of syntax 

Sharda Europe 

It is not clear which part of the sentence the 
adverbial clause of time modifies. 

ERGO Poist'ovňa 

Three language versions did not contain wording 
which could be translated as 'to the extent that'. 

Onix Asigurări 

In a noun phrase: irregularities within their 
territories v irregularities committed in their 
territories. 

Pinckernelle 

It is not clear which part of the sentence the 
adverbial phrase modifies. 

129  Kerstin Loehr, Mehrsprachigkeitsprobleme in der Europäischen Union (n 117) 17. 
130  Šarčević (n 118) 125. 
131 

John Lyons, Semantics (Cambridge University Press 1977) 114. 

                                                 
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Popescu 

The problem was the expression in Romanian 
(drept de conducere acordat).  

2. Lexical-Conceptual Divergences 

Khorassani 

Al Chodor 

Vilkas 

NEW WAVE CZ 

The German version used an expression that had 
a more restricted meaning (zum Gegenstand haben 
v. 'in relation to'). 

The problem revolved around the use of the term 
'defined by law' v. laid down in legislation. 

The problem revolved around the use of the term 
force majeure v. 'circumstances beyond the 
control'. 

The problem revolved around the use of the term 
'in the context of proceedings' v. within the 
framework of proceedings. 

When we delve into the types of divergences, a common question that can be 
considered is whether discrepancies between different language versions are 
to be attributed to a translation problem. A defective translation is indeed 
the  reason  for  linguistic  divergence  in  some  of  the  cases.  For  example,  in 
Sharda  Europe  the  provision  in  Spanish  was  not  expressed  correctly. 
Translators must have utmost care with adverbials because syntactic aspects 
can lead to semantic problems. We have seen that depending on the position 
of the adverbial, it can modify one part of the sentence or the other, having 
serious legal consequences. 

In other cases, the responsibility of translators in not so clear. For this reason, 
instead of saying whether a certain translation is correct or incorrect, I think 
that  it  would  be  more  appropriate  to  talk  about  adequacy.132  In  the  Vilkas 

132 

See,  for  instance,  Le  Chen  and  Kin  Kui,  'Terminological  equivalence  in  legal 
translation: A semiotic approach'(2008) 172 Semiotica 33; Fernando Prieto Ramos, 
'International and supranational law in translation: From multilingual lawmaking 
to adjudication'(2014a) 20(2) The Translator, 313; Fernando Prieto Ramos, 'Quality 
Assurance in Legal Translation: Evaluating Process, Competence and Product in 
the Pursuit of Adequacy' (2015) 28(1) International Journal for the Semiotics of Law 
11. 

 
                                                 
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case,  the  problem  of  interpretation  revolved  around  the  concept  of  force 
majeur. Some language versions did not use this term and expressed the same 
idea  with  a  different  expression.  It  could  be  argued  that  'circumstances 
beyond  the  control'  expresses  the  same  idea.  However,  as  the  CJEU 
explained in the judgement, there is settled case-law in various spheres of EU 
law that deal with the concept of force majeure.133 Translators who are aware 
and informed should take into account if a certain term has been interpreted 
in the context of EU law. Translations will normally achieve a higher level of 
adequacy if translators carry out a good contextualization of the translation 
task.134 

In  addition,  I  do  not  think  it  is  fair  to  attribute  all  shortcomings  to 
multilingual interpretation to translation.135 In this regard, we must bear in 
mind that legal norms  are expressed in natural language; as a consequence, 
ambiguity,  vagueness  and  open  texture  are  inevitable,  even  if  legislation  is 
monolingual.136  This  suggests  that  we  need  to  move  away  from  a  positivist 
approach that relies on a 'strong language theory'.137 Supporters of this theory 
assume that legal norms carry 'autonomous and pre-interpretive meaning'.138 
This implies that 'judicial decisions would be exempt from value judgements 

133  Case C-640/15 Minister for Justice and Equality v Tomas Vilkas EU:C:2017:39, para 53. 
134  On  parameters  for  contextualising,  see,  for  example,  Fernando  Prieto  Ramos, 
'Interdisciplinariedad y ubicación macrotextual en traducción jurídica' (2009) 13(4) 
Translation  Journal  1.  On  an  integrative  approach  for  reaching  higher  levels  of 
adequacy  with  appropriate  problem-resolving  mechanisms,  see  Fernando  Prieto 
Ramos,  'Parameters  for  Problem-Solving  in  Legal  Translation-Implications  for 
Legal  Lexicography  and  Institutional  Terminology  Management'  in  Le  Cheng, 
King Kui Sin and Anne Wagner (eds.),  The Ashgate Handbook of Legal Translation 
(Ashgate 2014); Prieto Ramos, 'Quality Assurance' (n 132). 

135  For example, Bobek claimed that 'The enduring problem, however, is the quality 
of  the  translations  of  the  Community  legislation:  inconsistency  in  terminology, 
mistakes in translation, parts of legislation. which are incomprehensible'. Michal 
Bobek, 'On the Application of European Law in (Not Only) the Courts of the New 
Member  States:  'Don't  Do  as  I  Say'?'  (2007)  10  Cambridge  Yearbook  European 
Legal Studies 12. 

136  On natural language and interpretation problems, see Moreso and Vilajosana (n 94) 

152-157.  

137  Christensen and Sokolowski (n 8) 65. 
138  Paunio (n 98) 113. 

                                                 
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and deprived of discretion'.139 In order to understand how multilingual EU 
law actually works, we need to consider that meaning is created in context 
and depends on the discourses in which it occurs.140 Legal concepts are not 
fixed entities; 'they can and do change'.141 

V. CONCLUSIONS 

This applied study has addressed three main points. First, as for the use of 
comparison, I have found that most cases of comparison of language versions 
carried out by the CJEU (71%) involve some kind of divergence; the rest (29%) 
are cases in which comparison is used to confirm an interpretation. Second, 
from the total number of cases that include some divergence, 70% are 'G1-
Hard  cases'.  This  study  has  revealed  a  correlation  between  the  'hard  cases' 
and metalinguistic interpretation. Third, regarding the types of divergences, 
most  cases  (70%)  are  'structural-grammatical'  divergences  and  the  rest  are 
'lexical-conceptual' divergences. No correlation can be established between 
the  type  of  divergence  and  the  method  of  interpretation;  i.e.  'structural-
grammatical'  divergences 
linguistic 
interpretation. 

involve  either  metalinguistic  or 

The study of divergences that emerge between different language versions is 
of paramount importance because it touches upon the question of uniform 
application and interpretation of EU law. The cases explored here provide an 
overview  of  the  type  of  linguistic  issues  that  come  to  light  in  multilingual 
interpretation by the CJEU. 

I propose an informed and reasoned approach to deal with the implications 
of EU law multilingualism in relation to four points. The first point concerns 
the creation of EU law. The role of translators as key actors in law-making 
must be kept in mind. They produce legislation that is legally binding and, 
therefore, there should be more collaboration between drafters, translators 
and  lawyer  linguists.  Translators  could  have  a  greater  role  by  participating 

139 

140 

Ibid. 
Jan Engberg, 'Word meaning and the problem of a globalized legal order' in Peter. 
M.  Tiersma  and  Lawrence  M.  Solan  (eds.),  The  Oxford  Handbook  of  Language  and 
Law (Oxford University Press 2012) 180. 

141  Anne-Lise  Kjær,  'A  Common  Legal  Language  in  Europe?'  in  Mark  Van  Hoecke 

(ed.), Epistemology and Methodology of Comparative Law (Hart 2004) 388. 

                                                 
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Multilingual EU Law 

45 

more  in  certain  discussions  when  deciding  the  content  of  legislation.  This 
would help translators understand the nuances of certain provisions, as EU 
law is 'negotiated legislation' and legislation normally passes through three 
institutions  (the  ordinary  legislative  procedure  being  'the  main  decision-
making  procedure  used  for  adopting  EU  legislation').142  Efforts  should  be 
focused on improving the legislative technique so that legislation is as clear as 
possible. As Strandvik also maintains, it is necessary to raise awareness and 
terminology  and 
provide 
translation'.143  It  may  not  be  possible  to  remove  the  challenges  that  are 
inherent to translation. However, 'by raising awareness about them, we can 
try to approach them differently, untangle and review our norms, beliefs and 
values, and update our working routines'.144 

legislative  drafting, 

training 

'formal 

in 

The second point concerning a new approach relates to the application and 
interpretation  of  EU  legislation.  No  strict  division  between  the  different 
tasks surrounding the creation and interpretation of EU law can be drawn. 
Translators need to be aware of the hermeneutic principles that the CJEU 
applies  when  interpreting  EU  law,  especially  when  the  Court  reconciles 
diverging language versions. Bengoetxea explains that 'genuine multilingual 
legal reasoning occurs at the stage of translation much more so than at the 
stage of drafting or even deliberation'. The translator 'is bound by a closed 
and circumscribed universe of meaning'.145  

The third aspect of this new way of thinking is to accept that divergences are 
inevitable. It is not a question of establishing English, for example, as the only 
source  text  for  drafting  and  interpretation  of  EU  legislation.146  Ambiguity 
and vagueness are inherent to natural languages. National courts should be 
more  familiar  with  linguistic  issues  in  EU  law,  even  if  only  to  have  the 

142  See  Consilium  Europa  <http://www.consilium.europa.eu/en/council-eu/decision-

143 

making/ordinary-legislative-procedure>, accessed 23 October 2017.  
Ingemar Strandvik, 'On Quality in EU Multilingual Lawmaking' in Susan Šarčević 
(ed.), Language and Culture in EU Law: Multidisciplinary Perspectives (Ashgate 2015) 
162. 
144  Ibid. 
145 

Joxerramon  Bengoetxea,  'Multilingual  and  Multicultural  Legal  Reasoning-  the 
European Court of Justice' in Anne-Lise Kjær and Silvia Adamo (eds.), Linguistic 
Diversity and European Democracy (Ashgate 2011) 118. 

146  Proposal by Baaij (n 106) 45. 

                                                 
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awareness  that  different  linguistic  versions  can  make  the  interpretation  at 
hand a bit more complex than they often assume.  

The fourth feature of this new way of thinking refers to the great potential 
that comparison between language versions offers. Comparison can help to 
elucidate unclear provisions and discover divergences that would otherwise 
go unnoticed. We must keep in mind that apparent clarity is 'no guarantee of 
absence of divergence'.147 How can we know that a text is clear if we do not 
check  the  other  language  versions?  We  must  recall  Watkin's  idea,  which 
claims that awareness of the inherent flexibility of language should be enough 
to persuade us that comparison is a necessary step.148 

This study has shown, however, that linguistic comparison was employed in 
only  about  3%  of  the  total  amount  of  cases  decided  by  the  CJEU.  This 
demonstrates  there  is  a  wide  gap  between  the  normative  requirements  to 
compare  different  language  versions  and  the  reality  of  its  application.149  I 
consider  that  the  CJEU,  as  the  guarantor  of  uniform  application  and 
interpretation of EU legislation, has the capacity and duty to become a real 
multilingual court.

147  Derlén (n 83). 
148  Thomas  Glyn  Watkin, 

'Bilingual  Legislation:  Awareness,  Ambiguity,  and 

Attitudes' (2016) 37(2) Statute Law Review 116. 

149  See Bobek (n 135) 1. 

                                                 
WHO HAS THE FINAL SAY? 
THE RELATIONSHIP BETWEEN INTERNATIONAL,  
EU AND NATIONAL LAW 

Lando Kirchmair*

A key focus of much scholarly attention is on the (theoretical) relationship between 
legal orders. The practical question I intend to answer in this article is the following: 
how can we know who has the final say – international, European Union (EU) or 
national law? I proceed in three steps. First, I critically sketch major current theories 
– monism and dualism, as well as global legal pluralism and global constitutionalism. 
However, because none of them offers a satisfactory answer to the question posed, I 
move  to  the  reconceptualization  stage  of  the  theoretical  relationship  between  legal 
orders. In the second step, I offer my account of how to think about the relationship 
between legal orders by introducing the theory of the law creators' circle (TLCC). The 
TLCC  provides  a  theoretical  foundation  for  deciding  on  the  source  of  the  decisive 
norm. It does not, however, provide a general solution which fits any norm conflict 
stemming from overlapping legal orders. Thus, the purpose of this article is to develop 
a  legal  theory  which  facilitates  the  understanding  of  the  interaction  between 
international law, EU and national law. Third, I use a doctrinal analysis to show the 
results of the TLCC application. For instance, in the famous Kadi saga, according to 
the TLCC,  the  EU  should  have  either  claimed  that  the  UN  Security  Council  was 
acting ultra vires or considered the UN Security Council Resolution  faulty because 
UN human rights (instead of EU human rights) had been violated. 

Keywords:  Monism,  Dualism, 
(Global) 
Constitutionalism, TLCC, Relationship between legal orders, International 
– EU – national law 

(Global)  Legal  Pluralism, 

*  Dr. iur., Mag. iur., Mag. iur.rer.oec. Postdoc at the Institute for Public Law, Public 
International and European Union Law, Paris Lodron University Salzburg. Lecturer 
at  the  Institute  for  Public  Law  and  Public  International  Law,  Bundeswehr 
University Munich. 
I  am  grateful  for  discussions,  comments,  and  helpful  critique  provided  by  András 
Jakab, the reviewers and editors as well as the participants at the 10th Anniversary 
Conference of the European Journal of Legal Studies on 20 November 2017 at the 
EUI.  

 
                                                 
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European Journal of Legal Studies  

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TABLE OF CONTENTS 

I. INTRODUCTION ............................................................................................ 48 
II. CURRENT THEORIES AND DOCTRINES AND THEIR FLAWS ................... 52 
1. Dualism & Monism .................................................................................................. 52 
A. Dualism ................................................................................................................... 52 

B. Monism .................................................................................................................... 55 
2. Global Legal Pluralism ........................................................................................... 60 
3. Global Constitutionalism ......................................................................................... 65 
4. An Intermediate Conclusion .................................................................................. 69 
III. TLCC – A STRUCTURAL ANSWER ........................................................... 70 
1. The Underlying Understanding of Law .................................................................. 71 
2. The Theory (of the Law Creators' Circle) .............................................................. 77 
A. Definition ............................................................................................................... 77 

B. Conflicts Between Different Law Creators' Circles ........................................... 78 

C. The Theory of the Larger Law Creators' Circle .................................................. 81 

D. Legal Consequences Resulting from a Violation of the Consensus of the Law 
Creators' Circle .......................................................................................................... 85 

E. The Connection between Law Creators' Circles ................................................ 88 
3. Practical Application of the TLCC ........................................................................ 90 
A. EU Law and Member State Law ........................................................................... 91 

B. International Law and EU Law............................................................................. 95 
IV. RESUMÉ ....................................................................................................... 98 

All truly wise thoughts have been thought already. 
All one has to do is try to think them again.1 

Johann Wolfgang von Goethe 

I. INTRODUCTION 

The relationship between international and national law has been debated for 
centuries. Generally, the floor has been divided between two approaches  – 
dualism and monism. I argue that, in the light of major developments since 

1 

Johann  Wolfgang  von  Goethe,  Wilhelm  Meisters  Wanderjahre  -  Buch  2  oder  die 
Entsagenden  (Zenodot  2016,  originally  1829  2nd  ed.)  239  (English  translation  by  the 
author). 

 
 
                                                 
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Who Has the Final Say? 

49 

their  inception,  like  the  establishment  of  the  European  Union  (EU),  these 
theories  can  no  longer  comprehensively  explain  the  relationship  between 
international,  EU  and  national  law.2  A  key  focus  of  my  work  is  to  re-
conceptualize  the  theoretical  relationship  between  legal  orders.3  Even 
though  some  scholars  have  doubted  the  relevance  of  theoretical  inquiries 
such  as  a  dualistic  or  a  monistic  analysis  of  the  relationship  between  legal 
orders, I cannot agree with those who trivialize this theoretical discussion by 
saying  it  would  be  'unreal,  artificial  and  strictly  beside  the  point'.4  If  we 
continue  reading  Fitzmaurice's  view,  it  becomes  clear  that  this  is  simply  a 
dualistic argument. This is because he continued arguing that '[i]n the same 
way it would be idle to start a controversy about whether the English legal 
system  was  superior  to  or  supreme  over  the  French  or  vice-versa,  because 
these systems do not pretend to have the same field of application'.5 This is 
also  an  implicit  theoretical  approach,  which  is  in  Fitzmaurice’s  case  a 
dualistic standpoint.6 Yet, current developments, fundamental changes and 
new  phenomena  such  as  the  massive  increase  in  international  institutions, 
actors, norms and tribunals as well as adjudicators make it imperative to seek 
new theoretical concepts. The so-called 'globalization of law'7 as framed in 

2  Lando Kirchmair, 'The 'Janus Face' of the Court of Justice of the European Union: 
A theoretical appraisal of the EU legal order's  relationship with international and 
member state law' (2012) 4(3) Göttingen Journal of International Law 677-691. 
3  See, for example, Lando Kirchmair, 'The Theory of the Law Creators' Circle: Re-
Conceptualizing the Monism – Dualism – Pluralism Debate' (2016) 17 (2) German 
Law Journal 179-214. 

4  Gerald  G.  Fitzmaurice,  'The  General  Principles  of  International  Law  Considered 
from the Standpoint of the Rule of Law' (1957) 92 Recueil des Cours de l'Académie 
de Droit Int'l. 1 (71).   

5  Ibid 71-72. 
6  For  a  practical  approach  concerning  the  relationship  between  international  and 
national law, see, for instance, Helen Keller, Rezeption des Völkerrechts (Springer 2003) 
6.  This  practical  approach,  however,  has  been  criticized  by  Stefan  Griller, 
'Völkerrecht  und  Landesrecht'  in  Robert  Walter  et  al.  (eds),  Hans  Kelsen  und  das 
Völkerrecht – Ergebnisse eines Internationalen Symposiums in Wien (Manz 2005) 84, n. 3. 
7  In relation to this designation, see Jean-Bernard Auby, 'Globalisation et droit public' 
in Gouverner, administrer, juger. Mélanges en l'honneur de Jean Waline (Dalloz 2002) 135; 
Anne Peters, 'The Globalization of State Constitutions' in Janne Nijman and Andre 
Nollkaemper (eds), New Perspectives on the Divide between National and International 
Law (Oxford University Press 2007) 251; see also David J. Bederman,  Globalization 

 
                                                 
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the  famous  Constitutionalization  of  International  Law,8  may  be  mentioned, 
among other developments, to elucidate the ever-growing importance of the 
debate on the final say between international, EU and national law. 

I start from the assumption that it is essential to have a theoretical concept 
for  the  relationship  between  legal  orders,  because  I  hold,  that  we  cannot 
intelligibly discuss this relationship without a theoretical concept. Without 
a theoretical concept, underlying assumptions often remain implicit and are 
not addressed clearly.9 My work is based on the conviction that a common 
(normative)  denominator  of 
is 
fundamentally  necessary  to  solve  norm  conflicts  between  overlapping  legal 
orders.10 Without such a common (normative) denominator we are left with 
non-normative  or  unilateral  solutions  for  norm  conflicts  between 
overlapping  legal  orders.  I  wish  to  offer  new  theoretical  insights  because  I 
hold that the current approaches do not provide satisfactory accounts. After 
critically  reviewing  the  current  dominant  theories  (dualism,  monism, 
pluralism and constitutionalism) in the first step (section II.), I depart from 
Goethe by providing my own theoretical account. 

international,  EU  and  national 

law 

The practical question I intend to answer is the following: how can we know 
who has the final say – International, EU or national law?  The way I try to 
respond to this question does not follow monism or dualism, nor pluralism or 

and  International  Law  (Palgrave  2008).  Neil  Walker,  Intimations  of  global  law 
(Cambridge University Press 2014). 

8  Alfred  Verdross,  Die  Verfassung  der  Völkerrechtsgemeinschaft  (Springer  1926);  Jan 
Klabbers,  The  Constitutionalization  of  International  Law  (Oxford  University  Press 
2009);  Oliver  Diggelmann  and  Tilmann  Altwicker,  'Is  there  something  like  a 
constitution  of  international  law?  A  critical  analysis  of  the  debate  on  world 
constitutionalism' (2008) 68 Heidelberg Journal of International Law 623-50.  

9  Compare  in  this  regard  also  András  Jakab,  European  Constitutional  Language 
(Cambridge  University  Press  2016)  1  quoting  John  Maynard  Keynes,  The  General 
Theory  of  Employment,  Interest  and  Money  (Palgrave  Macmillan  1936)  383 
concerning  economics:  'The  ideas  of  economists  and  political  philosophers,  both 
when they are right and when they are wrong, are more powerful than is commonly 
understood.  Indeed,  the  world  is  ruled  by  little  else.  Practical  men,  who  believe 
themselves to be quite exempt from any intellectual influence, are usually the slaves 
of some defunct economist'. 

10  Lando Kirchmair, 'The Theory of the Law Creators' Circle: Re-Conceptualizing the 
Monism – Dualism – Pluralism Debate' (2016) 17 (2) German Law Journal 179-214. 

                                                 
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Who Has the Final Say? 

51 

constitutionalism.11  I  intend  to  answer  this  question  by  introducing  the 
theoretical  concept  of  the  law  creators'  circle  (TLCC)  (section  III.).12  In 
short,  TLCC  aims  at  re-conceptualizing  the  monism-dualism-pluralism-
constitutionalism debate. The aim is to establish whether it is up to national 
law to determine the effect and validity of international or EU law within the 
domestic  (constitutional)  legal  order.  In  more  general  terms,  I  wish  to 
provide a theoretical concept to answer the question as to how we can know 
who has the final say. It does not  provide a general solution which fits any 
norm conflict stemming from overlapping legal orders. The purpose of this 
article  is  to  develop  a  legal  theory  which  facilitates  understanding  of  the 
interaction between international law, EU and national law. TLCC shares its 
point  of  departure  with  most  social  contract  theories.  It  is  based  on  a 
hypothetical  state  imagined  as  a  legal  vacuum,  denoted  the  'legal  desert'. 
However, in contrast to political philosophy, the hypothesis behind the law 
creators'  circle  aims  solely  to  elucidate  the  structural  relationship  between 
legal orders, without saying anything about how legal orders in particular or 
society  in  general  should  be  organized.  The  theory  is  thus  based  on  an 
abstract  definition  of 
(normative) 
denominator) as the binding consensus between natural persons. 

(i.e.  the  necessary  common 

law 

On  the  basis  of  this  theoretical  ground,  I  wish  to  engage  with  practice 
(section IV.) – I apply TLCC to the relationship between international, EU 
and national law.13 I present a doctrinal analysis of relevant provisions at EU 
level on the basis of the TLCC. I am convinced that a theory-based argument 
on  the  relationship  of  EU  and  Member  State  (MS)  law  will  fruitfully 
contribute  to  the  key  questions  of  EU  law,  such  as  the  doctrine  of  direct 
applicability  or  the  primacy  question  between  EU  law  and  fundamental 
constitutional law of the MS. It could provide for a convincing theoretical 

11  If  you  agree  with  me  that  current  theories  cannot  offer  a  convincing  account  for 
norm  conflict  solution  regarding  the  relationship  between  international,  EU  and 
national law you can skip the critique of current theories (II.) and proceed directly 
to III., TLCC. 

12  Lando  Kirchmair,  Die  Theorie  des  Rechtserzeugerkreises  –  eine  rechtstheoretische 
Untersuchung  des  Verhältnisses  von  Völkerrecht  zu  Staatsrecht  am  Beispiel  der 
österreichischen Rechtsordnung (Duncker & Humblot 2013). 

13  Kirchmair  (n  10)  for  an  extensive  account  thereof  applied  to  the  relationship  of 

public international law and the Austrian legal order. 

 
                                                 
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argumentation, solving potential tensions between the constitutional courts 
of MS and the Court of Justice of the EU (CJEU). For instance, arguments 
embedded in a sound theoretical explanation may help to clarify a potential 
stress  ratio  of  European  integration  and  the  (German)  'constitutional 
identity' which, according to the German Constitutional Court, is resistant 
to integration.14 

II. CURRENT THEORIES AND DOCTRINES AND THEIR FLAWS 

1. Dualism & Monism 

The relationship between international and national law is a topic of great 
importance.  Generally,  the  floor  has  been  divided  between  dualism,  as 
developed  by  Heinrich  Triepel,  and  monism,  mainly  formulated  by  Hans 
Kelsen, both of which need to be reviewed critically from today's perspective. 
I  argue  that  these  theories  can  no  longer  comprehensively  explain  the 
relationship between international and EU or EU and national law.15 And that 
due  to  their  emergence  almost  a  century  ago,  they  must  be  understood  in 
their  historical  context.  Current  challenges  posed  by  international  or 
supranational organizations like the European Union, and the development 
of international law in general, overburden these outdated theories. 

A. Dualism 

The  international  and  national  legal  orders  are  'two  circles,  which  possibly 
touch,  but  never  cross  each  other'.16  This  is  the  famous  statement  by 
Heinrich  Triepel  which  forms  the  cornerstone  of  the  dualistic  divide  of 
international (or EU) and national law. Dualism's divide of legal orders was 
primarily based on the view that the law of the international (or EU) and the 
national  legal  orders  emanates  from  different  sources,  leading  to  the 

14  German Federal Constitutional Court, BVerfGE 123, 267 (Lisbon) 30.6.2009. For an 
overview, see Gerhard van der Schyff, 'EU Member State Constitutional Identity: A 
Comparison  of  Germany  and  the  Netherlands  as  Polar  Opposites'  (2016)  76 
Heidelberg Journal of International Law 167-91. 

15  Kirchmair (n 2). 
16  Heinrich  Triepel,  Völkerrecht  und  Landesrecht  (C.L.  Hirschfeld  1899)  111  (emphasis 

omitted) (translation in the text by the author). 

                                                 
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Who Has the Final Say? 

53 

supposition  that  international  (EU  law)  and  national  law  have  arisen  from 
different legal orders relying on different grounds for validity.17 Although it 
still  holds  true  that  international,  EU  and  national  law  emanate  from 
different  sources,  dualism  also  assumes  that  the  addressees  and  content  of 
international and national law cannot be identical.18 Thereby, dualism turns a 
blind  eye  towards  the  direct  interaction  between  international  law  and 
individuals. It does so by stating that international law is purely inter-State 
law and can only stipulate obligations for States,19 which does not share the 
same addressees with EU or national law.20 The division of the legal systems 
implies  that  international  law  may  not  derogate  from  national  law,  and 
national  law  may  not  derogate  from  international  law.21  In  order  to  give 
international law an effect within a national legal system, dualism demands a 
special procedure to transform or incorporate the international norm into a 
national norm.22 As a result, the ground of validity of international law within 
national law rests solely within national law, and the ground of validity of EU 
law within national law rests too solely within national law. 

17  Dionisio  Anzilotti,  Lehrbuch  des  Völkerrechts  (W.  de  Gruyter  1929,  German 

translation by Cornelia Bruns and Karl Schmid) 38-39. 

18  Triepel (n 16) 9, 11, 228-229; Anzilotti (n 17) 41-42. 
19  Triepel (n 16) 228-229, 119-120, 271; Anzilotti (n 17) 41 ff;  Gustav A. Walz, Völkerrecht 
und  staatliches  Recht:  Untersuchung  über  die  Einwirkungen  des  Völkerrechts  auf  das 
innerstaatliche  Recht  (W.  Kohlhammer  1933)  238-239,  who  was  considered  to  be  a 
moderate  dualist,  yet  he  did  not  postulate  the  impossibility  of  international  law 
addressing individuals, but stated in 1933 that the character of international law at 
the time was mediatized through municipal law.  

20  This  criticism  was  already  expressed  by  Alfred  Verdross, 

'Die  normative 
Verknüpfung von Völkerrecht und staatlichem Recht' in Max Imboden et al. (eds), 
Festschrift für Adolf Julius Merkl zum 80. Geburtstag (Wilhelm Fink 1970) 425, 432 ff; 
Riccardo P. Mazzeschi, 'The Marginal Role of the Individual in the ILC's Articles 
on State Responsibility' 14 (2004) The Italian Yearbook of International Law 39, 42-
43  with  further  references  in  footnote  12,  'This  means  that  international  law  now 
regulates some relationships between States and individuals in a formal manner (and 
not  only  in  a  substantive  one)';    ICJ,  LaGrand  (Germany  v.  USA),  Judgment,  ICJ 
Reports [2001], 466, 494, para. 77. 

21  Triepel (n 16) 257-258; Anzilotti (n 17) 38. 
22  Anzilotti (n 17) 41, 45-46. 

 
                                                 
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Dualism  faces  serious  difficulties  explaining  the  basis  of  international  or 
supranational organizations, because, according to dualism, there would be 
one international and as many x-national grounds of validity of international 
or supranational organizations as there are Member States.23 In other words, 
the validity of an international organization would have to be divided by its 
Member States instead of having a uniform validity. Equally hard to grasp is 
the concurrent (dualistic) assumption that international, EU and national law 
by default cannot have the same content or addressees.24 This assumption is 
flawed, as it would make the norm conflicts between international, EU and 
national legal orders impossible, which, however, is not the case. Norms from 
overlapping  legal  orders  conflict  constantly.  If  for  instance  EU  law  would 
never  conflict  with  national  law,  the  supremacy  of  EU  law  would  be 
meaningless. 25 

While these flaws are obvious for us today, it was not so when dualism was 
emerging  at  the  turn  of  the  twentieth  century.  Think  only  of  the  dualistic 
assumption that international law (EU law at that time did not even exist) is 
purely inter-State law and so it can only oblige States but not individuals.26 
While  this  was  certainly  true  when  Heinrich  Triepel  was  shaping  dualistic 
thinking,  this  can  no  longer  be  perceived  as  an  accurate  depiction  of 
international 
law  nowadays  also  addresses 
individuals directly and shapes national law in many ways.27 Moreover, trying 
to fit EU law and its relationship with international and national law under a 
dualistic scheme seems like squaring the circle, as the dualistic assumptions 
do not match our understanding of EU law, which has at its core supremacy 
and direct effect. If there is a conflict between EU and national law, EU law 
takes  precedence  over  national  law.  Hence,  EU  law  is  binding  on  national 

law  today.  International 

23  Griller (n 4) 83, 97; see also the general criticism by Joseph G. Starke, 'Monism and 
Dualism  in  the  Theory  of  International  Law'  17  (1936)  British  Yearbook  of 
International Law 66. For an attempt to save dualism, see Gaetano Arangio-Ruiz, 
'International law and Interindividual law' in Janne Nijman and André Nollkaemper 
(eds), New Perspectives on the Divide Between National and International Law (Oxford 
University Press 2007) 15, 22.  

24  Triepel (n 16) 9, 11, 228-229, 254 ff; Anzilotti (n 17) 41-42. 
25  Kirchmair (n 2) 684 with further references. See III.3.B. 
26  Ibid with further references. 
27  See III.2.(d)(iii). 

                                                 
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Who Has the Final Say? 

55 

authorities and the ground of validity of EU law is not dependent on national 
law. 

Historically, dualism evinced progress as the separation of international and 
national law helped international law to become independent. Thus, dualism 
liberated  international  law  from  being  understood  as  'external  State  law',28 
and was even referred to as a 'cleansing thunderstorm' by the monist Alfred 
Verdross.29 In sum, the legal landscape has changed drastically, and the core 
assumptions of dualism are no more correct. As a consequence, dualism fails 
to explain the relationship between international, EU and national law today. 

B. Monism 

The main characteristic of monism is the assumption of a single unified legal 
system.  The  monism  theory  was  developed  most  prominently  by  Georges 
Scelle,  Hans  Kelsen  and  Alfred  Verdross  at  the  beginning  of  the  20th 
century.30  Monism  faces  the  criticism  of  having  a  highly  fictitious 
understanding  of  the  world:  nothing  less  than  the  'unity  of  the  legal  world 
order' is proclaimed.31 This understanding results from Kelsenian adherence 
to  neo-Kantian  epistemology,  'because  it  is  only  this  method  [the  monist 
concept  of  law]  and  its  focus  on  the  manner  of  cognizance,  not  its  objects, 

28  For the term 'äußeres Staatsrecht', see Georg W. F. Hegel, Grundlinien der Philosophie 

des Rechts (1821) §§ 330 ff; Kirchmair (n 2) 688. 

29  Alfred  Verdross,  Die  völkerrechtswidrige  Kriegshandlung  und  der  Strafanspruch  der 

Staaten (Engelmann 1920) 34: ('[R]einigendes Gewitter'). 

30  Hugo Krabbe, Die moderne Staatsidee (Nijhoff 2nd ed. 1919); Léon Duguit, Souveraineté 
et liberté (Éditions La Mémoire du Droit 1922); Georges Scelle, Précis de droit des gens: 
Principes  et  systématique,  Vol.  I  (Librairie  du  Recueil  Sirey1  932);  Hans  Kelsen,  'Les 
rapports de système entre le droit interne et le droit international public' 14 (1926) 
Recueil des Cours de l'Académie de Droit International, 227, 299; Alfred Verdross, 
'Le fondement du droit international' 16 (1927) Recueil des Cours de l'Académie de 
Droit International, 247, 287; Paul Gragl, Legal Monism: Law, Philosophy, and Politics 
(Oxford  University  Press  2018);  cf.  for  an  overview  Christine  Amrhein-Hofmann, 
Monismus und Dualismus in den Völkerrechtslehren (Duncker & Humblot 2003) 152 ff. 
31  Alfred  Verdross,  Die  Einheit  des  rechtlichen  Weltbildes  auf  Grundlage  der 
Völkerrechtsverfassung (J.C.B. Mohr 1923); Hans Kelsen, Reine Rechtslehre (Deuticke 
2nd ed 1960) 329; Arangio-Ruiz (n 23) 18, speaking of 'the natural unity of human kind 
… [a]s a matter of pure speculation'. 

 
                                                 
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which allows to ascertain a priori how positive law is even possible qua object 
of cognizance and qua object of the legal science'.32 

In  cases  of  norm  conflicts,  the  monistic  doctrine  needs  to  deal  with  the 
question as to which jurisdiction prevails. However, a monistic doctrine, with 
the  so-called  primacy  of  national  law  must  be  traced  back  to  a  very 
nationalistic  view  of  international  law,  which  no  longer  can  be  considered 
suitable.33  In  other  words,  how  could  popular  sovereignty  in  the  form  of 
national  law  (and  thus  one  people  only)  rule  over  international  or  EU  law 
without denying their law's validity? How should the validity of, say, EU law 
be based on the popular sovereignty of a single member State legal order and 
the  popular  sovereignty  of  one  nation  instead  of  all  member  States'  legal 
orders  and  their  respective  nations?34  For  the  failure  of  answering  these 
questions, the monistic conception with the primacy of municipal law is left 
aside here. 

Monism with the primacy of international law, on the contrary, has attracted 
a lot more attention. In order to justify the primacy of international law, the 
monistic doctrine stipulated the premise of a hypothetical unity – being kept 
together  by  the  'chain  of  validity'.35  The  ultimate  ground  of  validity  is  the 
famous basic norm of Hans Kelsen.36 Briefly, the basic norm is a hypothetical 

32  Paul Gragl, 'The Pure Theory of Law and Legal Monism – Epistemological Truth 
and Empirical Plausibility' (2015) 70(4) Zeitschrift für Öffentliches Recht 665-736, 
668-669 (italics original; footnotes omitted) with further references. 

33  Kirchmair  (n  2)  688.  Hans  Kelsen,  Das  Problem  der  Souveränität  und  die  Theorie  des 
Völkerrechts: Beitrag zu einer Reinen Rechtslehre (J.C.B. Mohr 2nd ed. 1928) 317, himself 
equated the monistic doctrine with the primacy of national law as the 'negation of all 
law'. However, later on he left the decision up to politics, see Kelsen (n 31) 339 ff. 
34  Compare  also  Walz  (n  19)  40,  who  classified  this  perception  of  monism  as 
'pseudomonistic'; see also Starke (n 23) 77, where he stated, '[r]educed to its lowest 
terms, the doctrine of State primacy is a denial of international law as law, and an 
affirmation of international anarchy.' 

35  The term 'chain of validity' stems from Joseph Raz, The Concept of a Legal System: An 
Introduction to the Theory of Legal System (Oxford University Press 2nd ed 1980) 105;  
Starke  (n  23)  75;  Catherine  Richmond,  'Preserving  the  Identity  Crisis:  Autonomy, 
System and Sovereignty in European Law' (1997) 16(4) Law and Philosophy 377, 388.  

36  Kelsen (n 31) 196 ff. 

                                                 
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Who Has the Final Say? 

57 

concept, which accounts for the unifying foundation of law and its validity.37 
The  basic  norm  is  a  dazzling  concept,  which  found  many  diverging 
interpretations  by  admirers38  and  critics.39  The  concept  of  the  'chain  of 
validity' is even more troublesome.40 Kelsen holds that '[a] norm of general 
international  law  authorizes  an  individual  or  a  group  of  individuals  on  the 
basis  of  an  effective  constitution,  to  create  and  apply  as  a  legitimate 
government a normative coercive order. That norm [of general international 
law],  thus,  legitimates  this  coercive  order  [of  a  'state'  in  the  meaning  of 
international law] for the territory of its actual effectiveness as a valid legal 
order and the community constituted by this coercive order as a 'state' in the 
sense of international law'.41 Similarly Verdross argues from the viewpoint of 
an  international  basic  norm  from  which  also  municipal  law  derives:  'The 
freedom of States is nothing else than a margin of discretion depending on 

37  For a brief explanation, see Gragl (n 32) 671-673. 
38  Robert Walter,  'Entstehung  und  Entwicklung  des  Gedankens  der  Grundnorm'  in 
Robert  Walter  (ed),  Schwerpunkte  der  Reinen  Rechtslehre  (Manz  1992)  47;  Robert 
Walter, 'Die Grundnorm im System der Reinen Rechtslehre' in Aulis Aarnio et al. 
(eds), Rechtsnorm und Rechtswirklichkeit: Festschrift für Werner Krawietz (Duncker & 
Humblot  1993)  85;  Heinz  Mayer,  'Rechtstheorie  und  Rechtspraxis'  in  Clemens 
Jabloner  and  Friedrich  Stadler  (eds),  Logischer  Empirismus  und  Reine  Rechtslehre: 
Beziehungen zwischen dem Wiener Kreis und der Hans Kelsen Schule (Springer 2002) 319; 
Ralf  Dreier,  'Bemerkungen  zur  Theorie  der  Grundnorm'  in  Hans  Kelsen-Institut 
(ed), Die Reine Rechtslehre in wissenschaftlicher Diskussion (Manz 1982) 38, 39, note the 
'function of the basic norm stipulating unity' 

39  Norbert Hoerster, Was ist Recht?: Grundfragen der Rechtsphilosophie (C.H. Beck 2006) 
134, 138 ff; Peter Koller, 'Meilensteine des Rechtspositivismus im 20. Jahrhundert: 
Hans  Kelsens  Reine  Rechtslehre  und  H.  L.  A.  Harts  'Concept  of  Law'  in  Ota 
Weinberger and Werner Krawietz (eds), Reine Rechtslehre im Spiegel ihrer Fortsetzer 
und  Kritiker  (Springer  1988)  129,  157  ff;  Griller  (n  4)  87-89; Werner  Schroeder,  Das 
rechtsdogmatischen, 
Eine  Untersuchung 
Gemeinschaftsrechtssystem: 
rechtstheoretischen  und  verfassungsrechtlichen  Grundlagen  des  Systemdenkens 
im 
Europäischen Gemeinschaftsrecht (Mohr Siebeck 2002) 75 ff. 

den 

zu 

40  For criticism, see András Jakab, 'Problems of the Stufenbaulehre: Kelsen's Failure to 
Derive the Validity of a Norm from Another Norm' (2007) 20 (1) Canadian Journal 
of Law and Jurisprudence 35-67. 

41  Hans Kelsen, The Pure Theory of Law (University of California Press M. Knight trans. 

of Reine Rechtslehre, 2nd ed. 1960, 1967, reprinted 1978), 193-215, 215. 

 
                                                 
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international law'.'42 According to him, the lawmakers of public international 
law  are  not  States,  but  the  international  community,  acting  through  an 
international organ with supranational power.43 

Following  this  idea  that  norms  can  only  derive  from  other  norms,  the 
conclusion drawn would have to be that any national law is derived from EU 
law,  and  EU  and  national  law  from  international  law.   This,  however,  is  an 
argument,  which  does  not  reflect  reality.44  Indeed,  the  CJEU  famously 
postulated  the  'autonomy  of  the  Community  legal  order'45  and  introduced 
the 'direct effect'46 of EU law, which has been interpreted by some voices as 
a  monistic  approach.47  Nevertheless,  it  would  be,  even  for  the  most 
progressive EU Constitutional lawyers, a step too far to argue that all MS legal 
orders derive from EU law. 

The fatal blow for monism with regards to EU law is the relationship between 
EU  law  and  international  law,  which  appears  to  show  even  dualistic 
elements.48 This 'Janus face' is inconsequent—at least when trying to uphold 
the underlying assumptions of Monism and Dualism.49 

While it is important to consider the current dichotomy of legal sources of 
international,  EU  and  national  law,  a  common  normative  framework  is 
equally  important.  Such  a  framework  is  necessary  to  acknowledge  the 
intertwinements  of  those  three  legal  orders  and  to  enable  a  norm  conflict 
solution for the norm conflicts arising from this intertwinement. Hence, the 
changes  in  the  legal  landscape  forces  us  to  leave  behind  the  almost  one-

42  Verdross (n 8) 35 (translated by the author). 
43  Verdross (n 8) 48 ff. But see Krabbe (n 31) 305-309. 
44  For criticism of the other monistic concept with the primacy of national law (which 
would consequently make international and supranational law governed by almost 
200 diverging national laws), see Kirchmair (n 2) 681 note 12. 

45  Case  C-6/64  Costa  v  ENEL  ECLI:EU:C:1964:66;  Case  C-284/16  Slovak  Republic  v 

Achmea BV ECLI:EU:C:2018:158 para 33. 

46  Case C-26/62 Van Gend & Loos ECLI:EU:C:1963:1. 
47  Kirchmair (n 2) 680 with further references in note 10. 
48  Compare only Case C-402 & C-415/05P, Kadi v Commission EU:C:2008:461: UN law 
and  EU  law  'originate  from  distinct  legal  orders'.  Cf  Kirchmair  (n  2)  683-5  with 
further references. 

49  See for this conclusion in more detail Kirchmair (n 2) 685-90. 

                                                 
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hundred-year-old  theories  of  monism  and  dualism.  Major  developments 
force us to seek an adequate theoretical framework which fits the reality of 
our time. 

Main claims of dualism and monism are summarized in the following table. 

Table 1: Dualism & monism overview  

Dualism 

Monism 

Presuppositions 

International and national 
law have: 

-  different 

addressees; 

-  different content 

(international law is 
purely inter-State 
law); 

-  different sources. 

Theoretical 
Outcome 

International and national 
legal orders are 

- 

separated ('two 
circles, which 
possibly touch, but 
never cross each 
other', Triepel) and 

-  based on different 
grounds of validity. 

Neo-Kantian epistemology 
('manner of cognizance 
constitutes the object'). 

Norms can only derive from 
other norms. 

If international law is law, 
the logical consequence is 
that both national and 
international law must be 
seen as a unitary legal order 
('unity of the legal world 
order', Verdross). 

Either international/EU law 
derives from national law or 
national law derives from 
international/EU law. 

Legal 
Consequences 

Norms must be 
incorporated from one 
legal order into another. 

Chain of validity ('Stufenbau 
nach der rechtlichen 
Bedingtheit'). 

Legal subjectivity of 
international organizations 
(be it the UN or the EU) 
would have one 

Ultimate ground of validity 
is the famous basic norm 
('Grundnorm'). 

 
 
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international and x-
national grounds of 
validity.  

Failure 

Presuppositions outdated.  Remains a theory focused on 

epistemology. 

Norm conflict solution is 
highly hypothetical. 

2. Global Legal Pluralism 

Another very prominent and more recent account of legal orders and their 
relationship is global legal pluralism.50 Eugen Ehrlich studied, as he put it, the 
'living law' of the Bukovina at the beginning of the 20th century.51 Because of 
his seminal studies Ehrlich is nowadays referred to as one, if not the founding 
father  of  legal  sociology.52  Triggered  by  the  findings  of  Ehrlich,  a  common 
understanding of pluralism is nowadays 'the presence in a social field of more 
than  one  legal  order'.53  From  the  vantage  point  of  two  different  legal 
authorities present in the same social field, which can also be found to exist 
in  colonial  situations,  'legal  pluralism'  also  became  a  key  concept  in 

50  Paul S. Berman, Global Legal Pluralism: A Jurisprudence of Law Beyond Borders (Oxford 
University Press 2012); Mireille Delmas-Marty, Les forces imaginantes du droit (II): Le 
pluralisme  ordonné  (SEUIL  2006);  Mireille  Delmas-Marty,  Ordering  Pluralism:  A 
Conceptual Framework for Understanding the Transnational Legal World (Hart Naomi 
Norberg trans 2009) 44; Nico Krisch, Beyond Constitutionalism: The Pluralist Structure 
of Postnational Law (Oxford University Press 2010); giving an overview Ralf Michaels, 
'Global legal pluralism' (2009) 5 Annual Review of Law and Social Science 243–262. 
51  Eugen Ehrlich, Grundlegung der Soziologie des Rechts (Duncker & Humblot  1913) 313. 
52  Manfred Rehbinder, Die Begründung der deutschen Rechtssoziologie durch Eugen Ehrlich 

(Duncker & Humblot 2nd ed 1986). 

53  John Griffiths, 'What is legal pluralism?' (1986) 24 Journal of Legal Pluralism 1–47; 
Sally  Engle  Merry,  'Legal  Pluralism'  (1988)  22  Law  &  Society  Review  869–896; 
Jacques Vanderlinden, 'Le pluralisme juridique: essai de synthèse' in John Gilissen 
(ed) Le Pluralisme juridique (Université Libre de Bruxelles 1971) 19–56, 19. 

                                                 
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Who Has the Final Say? 

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international law.54 Roughly from the 1990s onwards, legal scholarship began 
to  embrace  the  notion  of  legal  pluralism.  Berman  describes  the  shift  from 
anthropologically  orientated  studies  towards  what  he  coins  'global  legal 
pluralism' as follows: Formerly, studies were aimed at two distinct legal orders 
within  the  same  territory,  where  usually  one  legal  order  was  hierarchically 
superior  to  the  other.  Moving  away  from  this  hierarchical  understanding, 
legal  scholars  started  to  understand  these  different 
legal  orders  as 
'bidirectional, with each influencing (and helping to constitute) the other'.55 

increase 

legal  pluralism  correctly  describes  the  massive 

Global 
in 
international actors, norms and tribunals as well as adjudicators. Following 
this descriptive analysis an important question is how we ought to deal with 
or  even  solve  those  legal  conflicts  resulting  from  plural,  overlapping  legal 
claims. In this regard, it is striking to see that pluralists tend to oversimplify 
and  exaggerate  contrasting  positions: 
'sovereigntists'  stand  against 
'universalists'56  and  are  then  mediated  by  a  'pluralist  framework'.  Such 
instance  conceptualised  by  Berman  through  his 
framework 
'jurisgenerative  constitutionalism'.57  In  other  words,  'instead  of  trying  to 
erase  conflict,  [he]  seeks  to  manage  it'.58  To  'manage'  norm  conflicts  he 
reviews  a  series  of  'principles'  which  are  of  a  procedural  nature,  instead  of 
being substantial; namely these are 'procedural mechanisms, institutions, and 
practices'.59 Likewise the French pluralist, Mireille Delmas-Marty, contrasts 

is  for 

54  Brian  Z.  Tamanaha,  'Understanding  Legal  Pluralism:  Past  to  Present,  Local  to 
Global' (2008) 30 Sydney Law Review 375–411, 390; Paul S. Berman, 'Global Legal 
Pluralism' (2007) 80 Southern California Law Review 1155–1238, 1170. 

55  Ibid 1171. 
56  See the exaggerations made by Berman (n 54) 1180 stating that sovereigntists 'reject 
the legitimacy of all communities but the territorially-defined nation-state' and have 
(at  1180)  'intrinsic  reason  to  privilege  nation-state  communities  over  others', 
contrasting it with a radical universalist position stating (at 1189) that '[i]n contrast 
to  a reassertion of territorial prerogative, a universalist vision tends to respond to 
normative conflict by seeking to erase normative difference altogether.' 

57  Paul  S.  Berman,  'Jurisgenerative  Constitutionalism:  Procedural  Principles  for 
Managing  Global  Legal  Pluralism'  (2013)  20  (2)  Indiana  Journal  of  Global  Legal 
Studies 665-695. 

58  Berman (n 56) 1192; Berman (50) 145. 
59  Berman (n 56) 1192, and esp. 1196 ff. as well as Berman (50) 145, and esp. 152 ff. 

 
                                                 
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'utopian unity' with an 'illusion of autonomy'60 in order to propose to solve or 
soften  this  disparity  with  national  margins  of  appreciation  to  order 
pluralism.61 As an example she mentions the principle of subsidiarity in the 
law of the European Union.62 Even though the suggested solutions to manage 
or soften norm conflicts are rather restrictive and argue, for instance in the 
case  of  Berman,  only  in  favour  of  some  procedural  rules  (neglecting  any 
hierarchical fundamental norms), such claims remain in the realm of  ought. 
Prescriptive  claims  which  hold  that  these  rules  should  be  valid  in  order  to 
settle norm conflicts need to be well justified. By moving in the realm of ought, 
the  suggested  solutions  are  also  confronted  with  such  problems,  that  even 
reductionist  procedural  mechanisms  might  be  accused  of  having  a  strong 
normative flavour. Thus, also proposals for thin procedural mechanisms are 
also somewhat overarching substantial value claims.63 

Samantha  Besson  in  turn  suggests  that  democracy  'ought  rather  to  be  the 
supercriterion'  because  of  its  superior  legitimacy  when  'deciding  on  the 
others'. Yet, also she is aware that identifying democracy in international and 
national norms 'remains extremely complex'.64 And, one might wish to add, 
democracy  is  not  always  the  super-criterion  of  legal  orders  whose  norms 

60 Delmas-Marty (n 50) 44. 
61  Delmas-Marty (n 50) 44. 
62  Delmas-Marty (n 50) 45-46. 
63  For this critique of Berman, see Alexis Galán and Dennis Patterson, 'The limits of 
normative legal pluralism: Review of Paul Schiff Berman, Global Legal Pluralism: A 
Jurisprudence  of  Law  beyond  Borders'  (2013)  11  (3)  International  Journal  of 
Constitutional Law 783-800, esp. at 793 ff. For a response see Paul S. Berman, 'How 
legal pluralism is and is not distinct from liberalism: A response to Alexis Galán and 
Dennis Patterson' (2013) 11 (3) International Journal of Constitutional Law 801-808. 
C.f. further critically also Ralf Michaels, 'On liberalism and legal pluralism' in Miguel 
Maduro, Kaarlo Tuori and Suvi Sankari (eds.) Transnational Law: Rethinking European 
Law  and  Legal  Thinking  (Cambridge  University  Press  2014)  122-142,  141:  'his 
[Berman's] managerialism also presupposes some superior position from which such 
management is possible.' 

64  Samantha Besson, 'Whose Constitution(s)? International Law, Constitutionalism, 
and Democracy' in Jeffrey L. Dunhoff and Joel P. Trachtman (eds.) Ruling the world? 
Constitutionalism, international law, and global governance (Cambridge University Press, 
2009) 381-408, 405. 

                                                 
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Who Has the Final Say? 

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might  be  in  conflict.  In  Krisch's  account,  a  somewhat  exaggerated65 
'foundational  constitutionalism'  stands  against  'softer  network  forms  of 
international cooperation' which are, again, mediated by pluralism.66 So even 
the most radical pluralist, Krisch, bases the norm conflict resolution—at least 
in some cases—upon what he calls 'the construction of interface norms'.67 In his 
opinion,  the  pluralism  is  about  orders  which  are  linked  and  know  certain 
forms  of  common  decision-making.68  Thus,  also  for  him,  there  ought  to  be 
certain norms ('interface norms'), which 'regulate to what extent norms and 
decisions in one sub-order have effect in another'.69 Yet, he immediately falls 
back on his radical pluralism when saying that these rules are established by 
each order for itself including steady risk of conflict.70 His main argument is 
that  in  the  post-national  sphere  '[u]nder  conditions  of  strong  fluidity  and 
contestation, conflict rules face serious problems of adaptation to a changing 
environment' and 'are unlikely to be able to truly settle conflicts—they might 
remain  ineffectual  or  even  enflame  conflicts  further.'71  However,  the 
consequence  is  that  we  actually  lack  a  common  (normative)  norm  conflict 
solution. 

From this very brief overview we can conclude that most of the pluralists also 
think  that  there  should  be  some  kind  of  rules  to  assist  norm  conflict 
resolution. I argue in brief, that the question as to how we ought to deal with 
or even solve those legal conflicts (based on a (common) framework) resulting 
from  plural,  overlapping  legal  claims  is  quite  different  from  a  descriptive 
analysis.  Already  the  identification  of  a  conflict  necessarily  implies  an 
overarching  system.72  It  is  important  to  sharply  distinguish  between  a 

65  See for this criticism Gregory Schaffer, 'A Transnational Take on Krisch's Pluralist 
Postnational Law' (2012) 23 (2) European Journal of International Law 565-582. 

66  Krisch (n 50) 300, 183. 
67  Krisch (n 50) 285 ff. [italics added by the author]. 
68  Krisch (n 50) 288. 
69  Ibid, 285. 
70  Ibid, 286. However, note also that Krisch states later (p. 312) that these norms stem 

from the sub orders (at p. 286) and might clash. 

71  Nico Krisch, 'Who is afraid of radical pluralism? Legal Order and Political Stability 

in the Postnational Space' (2011) 24 Ratio Juris 386-412, 407.  

72  Alexander Somek, 'Monism: A tale of the undead' in Matej Avbelj and Jan Komárek 

(eds) Constitutional pluralism in the European Union (Hart 2012) 343-79. 

 
                                                 
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descriptive analysis and a prescriptive proposal for norm conflict resolution. 
Moreover, I hold that such an overarching normative framework for norm 
conflict  resolution  needs  to  be  a  common  normative  framework  of  all 
overlapping legal orders.  

Some pluralists might claim that they envision 'common' approaches. Still, I 
would  answer  that  anything  which  is  called  plural  can  hardly  provide  for  a 
genuinely common normative framework. I argue that it is more accurate to 
either stay within a purely descriptive analysis of current facts and describe 
them  as  pluralistic  or  move  from  descriptions  to  prescriptions.  In  other 
words,  one  must  take  account  of  arguing  now  in  the  realm  of  ought,  by 
introducing, for instance, the thought that we ought to avoid conflicts, and, if 
they occur, that we ought to cooperate somehow to solve or mitigate them. 
This  is  what  I  think  is  the  very  first  prescriptive  step  in  the  (global)  legal 
pluralism debate.73 Norm conflict identification and proper resolution must 
be based on a genuinely common normative framework which encompasses 
all  affected  legal  orders.  That  means  that  a  pluralistic  picture  without  a 
common normative framework has no normative (legal) guidance for finding 
the final arbiter in legal norm conflicts.74 

Although global legal pluralism may provide a coherent descriptive account 
of  current  legal  developments,  it  lacks  a  satisfying  common  prescriptive 
account.  Accordingly,  claims  (for  how  to  solve  or  why  not  to  solve  norm 
conflicts)  which  solely  rest  on  the  description  of  pluralistic  orders  do  not 
suffice  as  a  basis  for  a  normative  account.  If  approaches  of  legal  pluralism 
resort  to  some  sort  of  'meta  norms  or  principles'  to  solve  norm  conflicts,75 

73  For  a  powerful  critique  of  the  hidden  'common  point  of  reference'  in  pluralistic 
accounts see Klaus Günther, 'Normative legal pluralism – a critique', paper presented 
at the 'Philosophical foundations of global law' conference at the University of Cartagena, 
Colombia  on  25  August  2016  (on  file  with  the  author).  See  also  Klaus  Günther, 
'Normativer  Rechtspluralismus:  Eine  Kritik'  in  Thorsten  Moos,  Magnus  Schlette 
and Hans Diefenbacher (eds) Das Recht im Blick der Anderen: Zu Ehren von Eberhard 
Schmidt-Aßmann (Mohr Siebeck 2016) 43-62. 

74  Gragl (n 32) 693-695. 
75  Compare  Berman  (n  77)  665–95,  with  Delmas-Marty  (n  50).  With  regards  to 
constitutional  pluralism,  see  Mattias  Kumm,  'The  Moral  Point  of  Constitutional 
Pluralism' in Julie Dickson and Pavlos Eleftheriadis (eds), Philosophical Foundations of 
European Union Law (Oxford University Press 2012) 216, 220. 

                                                 
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they  too  will  need  to  justify  these  principles  and  to  give  reasons  for  such 
common accounts. Otherwise power asymmetries are difficult to avoid. The 
warning by Klaus Günther is pertinent in this debate: 'Historical experience 
teaches us that a pluralism of normative orders can rapidly become the victim 
of power asymmetries, or even bring forth such asymmetries'.76 

3. Global Constitutionalism 

Before moving onto my own proposal, another brief section devoted to global 
constitutionalism  is  in  order.  Constitutionalism  on  a  global,  supranational, 
and  national  level  is  an  important  and  wide-ranging  concept.  Due  to  the 
successful  emergence  of  'global  constitutionalism'  as  a  movement  and 
interdisciplinary  discipline  many  diverging  issues  are  discussed  under  this 
influential  label  since  its  breakthrough  in  the  21st  century.77  Global 
Constitutionalism,  as  much  as  Constitutionalism,  shares  the  aspiration  of 
limitation  of 
establishment  as  well  as  the  normative  guidance  and 
'refers  to 
governmental  power.  In  other  words,  Constitutionalism 
governance  according  to  constitutional  principles'.78  We  speak,  thus,  of  a 
discourse which involves the 'framing, constituting, regulating, and limiting 
[of]  power'79  –  be  it  either  in  a  thin  or  in  a  thicker  form.80  The 
constitutionalization  of  international  law  is  a  project  which  is  mainly 
interested in the substantial development of international law in the form of 
constitutional norms or principles (or of constitutional norms or principles 
of the EU for instance).81 Constitutionalism therefore is usually connected to 
certain key legal concepts such as the rule of law, human rights, democracy, 

76  Günther (n 73). 
77  Anne Peters, 'Constitutionalisation', Max Planck Research Paper Series No. 2017-
08,  1,  forthcoming  in  Jean  d'  Aspremont  and  Sahib  Singh  (eds)  Concepts  for 
International Law - Contributions to Disciplinary Thought (Edward Elgar).  

78  Jaako  Husa,  'Global  Constitutionalism  –  A  critical  view',  Maastricht  European 

Private Law Institute Working Paper No. 2016/11. 

79  Jean  L.  Cohen,  Globalization  and  Sovereignty.  Rethinking  Legality,  Legitimacy,  and 

Constitutionalism (Cambridge University Press 2012) 76. 

80  Wil  Waluchow, 

'Constitutionalism'  in  Edward  N.  Zalta  (ed)  The  Stanford 

Encyclopedia of Philosophy (2017). 

81  For a critical overview of 'world constitutionalism', Diggelmann and Altwicker (n 8). 

 
                                                 
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and  inhibits  a  materially  substantiated  form  of  how  law  should  be.82  Very 
often also a strong universal flavour is attached to such concepts on a global 
perspective.  

Global  Constitutionalism  is  facing  a  challenge  brought  by  descriptive  legal 
pluralism: solutions to norm conflicts might differ depending on the context. 
Thus, another context, so goes the main argument of contextualization, asks 
for different solutions as different conditions are in place.83 Once we reveal 
that  the  very  first  prescriptive  question  is  what  we  ought  to  do  with  norm 
conflicts,  there  are  very  likely  to  be  very  different  solutions  to  different 
conflicts  (and  different  legal  orders  involved)  depending  on  the  context.84 
This  is  acknowledged  by  understanding  constitutionalism  as  a  fragmented 
and  contextualized  concept,85  'a  relatively  consolidated  form  of  global 
constitutionalism',86 or to a certain extent also by Constitutional Pluralism.87 

82  For legal key concepts, see Jakab (n 9). 
83  For such a critique of the pluralistic account of Nico Krisch see also Schaffer (n 65) 
579:  'The  positive,  empirically-grounded  study  of  transnational  legal  ordering,  in 
contrast, is important for building a normative approach grounded in philosophical 
pragmatism  which  recognizes  the  need  for  institutional  variation  in  response  to 
different contexts'. 

84  For a similar argument see also Emmanuel Melissaris, Ubiquitous Law: Legal Theory 
and the Space for Legal Pluralism (Ashgate 2009), ch. 3 relying on Robert M. Cover, 
The supreme court, 1982 Term-Foreword: Nomos and narrative, 97 (4) Harvard Law 
Review, 1983, pp. 4-68; and Robert M. Cover, 'Violence and the word', 95 Yale Law 
Journal,  1986,  1601-1629.  However,  it  is  important  to  highlight  that  my  claim  for 
contextualization is much simpler and thus less overladen than the claim Melissaris 
is making. While Melissaris's main target is a sceptical view of State law—or at least 
the link between State and law which is unnecessary in his eyes—my argument here 
is simply that when facing normative conflicts there are much likely to be various 
different solutions to deal with the conflict depending on the context. Thus I argue 
against a single — sometimes even not very clear prescriptive — claim of dealing with 
normative conflicts in the pluralistic world. 

85  Peters (n 77). 
86  Turkuler  Isiksel,  'Global  Legal  Pluralism  as  Fact  and  Norm'  (2013)  2  Global 

Constitutionalism 160-195, 190. 

87  See only Neil Walker, 'The Idea of Constitutional  Pluralism' (2002)  The Modern 

Law Review 65 (3) 317-359. 

                                                 
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What still remains problematic is the specific request for constitutional norms, 
rules and principles. The relationship between legal orders must not always 
be  of  a  constitutional  dimension.  Moreover,  despite  the  fact  that  a 
relationship between different legal orders must not be guided by one specific 
constitution, there might still exist a legal relationship between certain legal 
orders. This holds true, even if we can speak of a Member State legal order as 
a constitutional order, and the EU legal order as a constitutional order. It is 
challenging  to  determine  the  relationship  between  these  legal  orders  as  it 
requires to establish which constitutional system has the final say. 

Very likely, we will fall back to a sort of non-hierarchical relationship of the 
involved constitutional systems in order to avoid a subordination of one order 
under  another.  Trying  to  resolve  these  questions  on  a  constitutional  level 
might thus very likely lead to a 'constitutional stalemate'. 

Therefore,  I  am  sceptical  about  constitutionalism  being  a  helpful  concept 
with regard to the challenge of resolving norm conflicts between overlapping 
international, EU, and national legal orders. I doubt that constitutionalism is 
an  appropriate  concept  to  guide  legal  norm  conflict  resolution  of  those 
overlapping but different legal orders. On a global scale, we are well advised 
to  take  the  descriptive  account  of  global  legal  pluralism  seriously.  The 
massive  increase  in  international  actors,  norms  and  tribunals,  as  well  as 
adjudicators, simply makes it very difficult to speak of constitutionalism  de 
lege lata (without definitely excluding the possible existence of a thin layer of 
global  constitutionalism).  A  cautious  assessment  is  that  constitutionalism 
presumes too many substantial values for the envisaged common normative 
denominator  in  order  to  be  a  helpful  concept  for  norm  conflict  solution 
arising out of the relationship between international, EU and national law.88 

88  Michael Perry, A global political morality: Human rights, democracy, and constitutionalism 
(Cambridge  University  Press  2017),  which  envisages  'agapic  sensibility'  as  the 
foundation  for  human  dignity.  Perry's  statement  illustrates  how  difficult  such 
universal legal standards are 'this book is about the political morality of human rights 
[…] not about the international law of human rights' (italics original), p.2. For a critical 
account of the current state of EU 'constitutionalization', see Dieter Grimm, 'The 
democratic  costs  of  constitutionalization:  The  European  case'  in  Dieter  Grimm, 
Constitutionalism. Past, present, and future (Oxford University Press 2015) 295. 

 
                                                 
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If we agree that norm conflicts from different but overlapping legal orders 
should be avoided and if they appear that they should be resolved, then we 
need to look for appropriate concepts for such a task. I argue that we are in 
need of a common normative (legal) framework for resolution. Common in 
the sense that this normative framework is brought about in agreement by all 
affected legal orders. In other words, if we agree that 'stronger state[s should 
not be able to] lawfully force a constitutional position on another state or a 
stronger court on a weaker court, without any legal redress'.89 Then, we are in 
need of such a common normative concept. Still, this article takes the stand 
that  constitutionalism  is  not  directly  helpful  for  our  question  of  the 
relationship of legal orders either.90 Constitutionalization is more interested 
in  the  substantial  development  of  international  law  in  the  form  of 
constitutional norms or principles (or of constitutional norms of principles 
of  the  EU  for  instance)  than  in  explaining  the  relationship  between 
international, EU and national law.91 

Table 2: Global Legal Pluralism & Global Constitutionalism overview:  

Global Legal Pluralism  Global Constitutionalism 

Presuppositions 

Theoretical 
Outcome 

- Norm conflicts are 
positive. 
- Focus on a descriptive 
account. 

- Description of pluralistic 
orders as the basis for a 
normative account for 
norm conflict solution. 

- Common values (and 
further necessities for 
constitutional unity). 
- Universality (at least for 
the claimed legal orders). 
- The Constitution guides 
all embraced legal 
orders/norm conflicts. 

89  Pavlos Eleftheriadis, 'Cosmopolitan Legitimacy', paper presented at the 'Philosophical 
foundations  of  global  law'  conference  at  the  University  of  Cartagena,  Colombia  on  25 
August 2016 (on file with the author). 

90  Alexander  Somek,  The  Cosmopolitan  Constitution  (Oxford  University  Press  2014) 
writing in the preface that 'Greater 'constitutionalization' of supranational or even 
international law threatens to rob constitutionalism of its political core.' 

91  Klabbers  (n  8)  simply  presuming  it;  Thomas  Kleinlein,  Konstitutionalisierung  im 
Völkerrecht  (Springer 2012), refraining from strong normative claims.  For a  critical 
overview of 'world constitutionalism', Diggelmann and Altwicker (n 8). 

  
                                                 
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Who Has the Final Say? 

69 

Legal 
Consequences 

Failure 

- Potential norm 
conflicts without a 
common solution 
(individuals might face 
contradictory claims). 
- No satisfactory 
common account for 
norm conflict solution. 
- Descriptive accuracy, 
but normatively wanting. 
- Praise of norm conflicts 
without a common 
solution. 

- Always constitutional 
(depending on the content 
of the constitution). 

- Presuppositions are too 
demanding ('burden of 
universality'). 
- Not flexible enough for 
diverging contexts. 

4. An Intermediate Conclusion 

A critical approach towards the theories of dualism and monism is now quite 
common.92  However,  this  does  not  mean  that  some  elements  of  these 
theories cannot be applied in a meaningful way and thereby they might still 
be useful tools to understand specific processes of the relationship between 
international,  EU  and  national  law.93  And,  despite  all  the  criticism  these 
theories faced, their persistence is remarkable. Dualism as well as monism are 
still  referred  to  in  many  textbooks,  they  are  present  in  case  law,94  and  in 
scholarly work.95 Also in practice, many (national) legal orders are still often 
referred to as being 'dualistic' or 'monistic'. Thus, there is a need to make the 
critical points as clear as possible in order to explain why they are of no help 
in answering the question posed by this article.  

92  Armin  von  Bogdandy,  'Pluralism,  Direct  Effect,  and  the  Ultimate  Say:  On  the 
Relationship  between  International  and  Domestic  Constitutional  Law'  (2008)  6 
ICON  397,  400  denoting  those  theories  'intellectual  zombies';  Kirchmair  (n  2);  
Lando  Kirchmair,  'Is  the  EU  legal  order  the  tombstone  of  the  dualistic  and  the 
monistic  doctrine?'  in  Michael  Thaler  and  Michel  Verpeaux  (eds),  La  recherche  en 
droit constitutionnel comparé (L'Harmattan 2014) 71-86. 

93  Jakab (n 40). 
94  The German Constitutional Court, BVerfGE, 111, 307 (Görgülü). 
95  Gragl (n 32); as well as Paul Gragl, 'In defence of Kelsenian Monism: Countering Hart 

and Raz' (2017) 8(2) Jurisprudence 287-318.  

 
                                                 
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Moreover,  this  article  holds  that  (global)  legal  pluralism  cannot  offer  a 
satisfying  normative  account  for  norm  conflict  resolution  between 
international, EU and national law either. Hence, prescriptive proposals to 
solve legal conflicts arising from different legal orders on the global plane are 
better  not  termed  'pluralistic'.  I  shall  suggest  in  this  article  that  it  is  more 
precise  to  refer  to  a  necessarily  common  framework  which  addresses  the 
question as to how those conflicts should be resolved together or at least in a 
way acceptable to all parties. 

Finally, this article holds that this common framework depends hugely on the 
context. Thus, solutions are more likely to be found if we focus on specific 
contexts  instead  of  trying  to  provide  universal  solutions  for  different 
situations.  This  is  the  reason  why  global  constitutionalism  or  global  law 
cannot  provide  universal  solutions  for  norm  conflict  resolution  between 
international,  EU  and  national  law.  They  do  not  take  the  'burden  of 
universality' seriously enough or end in a 'constitutional stalemate'. Broadly 
speaking, this is because it is usually far too difficult in our highly complex 
and dynamic world to come up with global or truly universal solutions. 

If  my  analysis  so  far  is  correct,  then  all  major  theories  on  the  relationship 
between  legal  orders  suffer  from  serious  flaws  when  trying  to  answer  the 
question as to where to find the decisive source in legal norm conflicts. At the 
same  time,  a  sound  theoretical  concept  is  essential  for  the  relationship 
between  legal  orders.  Hence,  I  propose  my  own  theoretical  concept:  the 
theory  of  the  law  creators'  circle.  Arguably,  this  concept  provides  a  sound 
theoretical foundation without becoming ensnared in the flaws attributed to 
the existing theories, and it should provide a correct answer to the question 
posed. 

III. TLCC – A STRUCTURAL ANSWER 

My  aim,  with  what  I  call  the  theory  of  the  law  creators'  circle,  is  to 
conceptualize  in  a  very  abstract  way  how  we  could  principally  design  or, 
rather, understand the structural relationship between legal orders in general. 
The  goal  is  to  obtain  a  common  denominator  which  is  abstract  enough  to 
capture  principal  issues  of  relationships  between  legal  orders  but  still 
provides enough normative guidance in order to bring about concrete results. 
How  particular  situations  are  analyzed  might  then  differ  significantly 

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depending  on  which  context  we  are  looking  at.  Only  then  we  are  able  to 
answer the question as to how we can know who has the final say. 

1. The Underlying Understanding of Law 

In order to analyze the relationship between international, EU and national 
law  properly,  I  establish  a  working  hypothesis:  a  common  denominator  of 
international, EU and national law must be stipulated to enable a transparent 
and methodologically coherent analysis of the relationship. The legal concept 
underlying the theory of the law creators' circle96 concentrates on those legal 
aspects  especially  relevant  for  the  relationship  between  international,  EU 
and  national  law.  Because  international  law,  EU  law  and  national  law  are 
different legal fields to a certain extent, an abstract understanding of law is 
necessary in order to include all three fields under one common denominator. 
The common denominator is vital because it enables a comparison of those 
different  fields.  In  order  to  avoid  using  sociological,  anthropological, 
psychological  or  other  reasoning  embedded  in  natural  sciences,97  a 
hypothetical basis is assumed.98  

96  For an extensive account of this theory as applied to the relationship between public 
international  law  and  the  Austrian  legal  order,  see  Kirchmair  (n  12).  For  an 
introduction  to  the  theory  (and  further  references)  and  its  application  to 
international treaties and their relationship to the Austrian as well as the Hungarian 
legal order as well as the former abbreviation TREK, from the German term 'Die 
Theorie des Rechtserzeugerkreises', see Kirchmair (n 10), which is an early version 
of chapter III of this Article. 

97  Jan Klabbers, An introduction to international institutional law (Cambridge University 
Press  2002)  34;  Lando  Kirchmair,  'How  (not)  to  argue  for  the  relation  between 
natural sciences and law: Why the thesis of an innate 'Universal Moral Grammar' and 
its relevance for law as argued by John Mikhail fails' (forthcoming) Archiv für Rechts- 
und Sozialphilosophie. 

98  See also Loos arguing that legal science as much as social sciences pursue meaningful 
consequences  based  on  hypothetically  presumed  values  (which  makes  them 
normative  sciences),  Fritz  Loos,  Zur  Wert-  und  Rechtslehre  Webers  (Mohr  Siebeck 
1970) 111. For the change from a real to a hypothetical contract, see Koller (n 99) 14, 
who quotes Immanuel Kant, Über den Gemeinspruch: 'Das mag in der Theorie richtig sein, 
taugt  aber  nicht  für  die  Praxis'  (Berlinische  Monatsschrift  1793)  153  as  the  first  to 
express the fiction of a social contract.  

 
                                                 
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The definition of law as well as its origins start in the 'legal desert'.99 The legal 
desert shall be understood as a legal vacuum: a neutral, pre-legal state without 
any further specifications. Of course, such a starting point provokes reflexive 
associations  to  social  contract  theories.  The  legal  desert  was  considered 
empirically as an anarchic state in which everyone is at war with everyone else, 
famously  expressed  as  the  'state  of  nature'  by  Thomas  Hobbes.100  Natural 
rights  were  conceived  to  be  already  existing  and  just  to  be  protected  by  a 
social contract by John Locke.101 Jean-Jacques Rousseau thought it necessary 
to discard everyone from their property in order to enable the formation of 
the  'volonté  générale',102  which  is  considered  to  be  a  prerequisite  for  the 
formation of common interests in the first place. 

As  I  do  not  focus  on  how  a  just  society  can  be  conceived,  the  following 
assumption shall suffice: in the legal desert, a consensus between two or more 
individuals  is  widely  considered  to  be  the  possibility  which  allows  the 
establishment of a binding legal rule to organize cohabitation.103 Consensus 
thereby  is  understood  to  serve  as  a  tool  for  objectification  of  individual 
interests104  and  does  not  aim  to  establish  any  values  or  tools  that  might 

99  Compare  the  theories  of  the  social  contract  summarized  by  Peter  Koller,  Neue 

Theorien des Sozialkontrakts (Duncker & Humblot 1987). 

100 Thomas Hobbes, Leviathan (1651, Leviathan, German translation by J. Schlösser 1996) 

96 ff. 

101  John  Locke,  Zwei  Abhandlungen  über  die  Regierung  (1690  Two  Treatises  of 

Government, German translation by H. J. Hoffmann 1977) 201 ff. 

102  Jean-Jacques Rousseau, Vom Gesellschaftsvertrag oder Grundsätze des Staatsrechts (1762, 
Du  contract  social;  ou  principes  du  droit  politique,  German  translation  by  H. 
Brockard 1986) 1. book, 6. chapter, 17 f.; Koller (n 99) 25. 

103  Kirchmair  (n  12)  46  ff.  Compare  thereto  also  Weinberger's  argument  aiming  at 
disclosing  natural  law  based  theories  arguing  that  legal  positivism  originates  from 
non-cognitivism holding that it is impossible to cognize right law and justify norms 
cognitively Otta Weinberger, Norm und Institution – eine Einführung in die Theorie des 
Rechts (Manz 1988) 72 f. 

104 The notion of objectivity therefore refers only to an approximation to objectivity. 
Compare also discourse theory Robert Alexy, 'Diskurstheorie und Menschenrechte' 
in  Robert  Alexy  (ed),  Recht,  Vernunft,  Diskurs  –  Studien  zur  Rechtsphilosophie 
(Suhrkamp 1995) 127, 129 who circumscribes discourse theory as a procedural theory 
of  practical  validity.  Jürgen  Habermas,  Die  Einbeziehung  des  Anderen  (2nd  ed. 
Suhrkamp  1997)  299f;  Jürgen  Habermas,  Die  postnationale  Konstellation  (Suhrkamp 

                                                 
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indicate how a just society shall be organized. While the point of departure is 
very  similar  to  most  social  contract  theories—the  'legal  desert'—the  aim  of 
this analysis contrasts sharply with the aim of political philosophy as the goal 
of this article is much more moderate. 

Choosing  this  hypothesis  behind  the  law  creators'  circle  aims  at  only 
elucidating  the  structural  relationship  between  international,  EU  and 
national law without saying how society or the State should be organized (or 
without arguing, for instance, whether the EU has a constitution or not). Yet, 
it is not a descriptive theory basing the law on sociological facts. The TLCC 
is  a  proposal  for  normative  guidance  of  norm  conflict  resolution  between 
different  legal  orders.  Whether  the  hypothetical  legal  desert  is  best 
understood  by  imagining  a  natural  disaster  or  other  events  is  left  to  the 
reader's  imagination.  This  hypothetical  starting  point  shall  guarantee  a 
consistent definition of law. That is, the definition of international law, EU 
law,  and  national  law  must  be  uniform.  For  if  it  is  not,  the  norm  conflict 
resolution  between  the  different  legal  orders  cannot  work  properly.105 
Analogous  to  the  historical  idea  of  social  contract  theory,  the  consensus 
element  is  based  on  the  abstract  principles  of  pacta  sunt  servanda  and  pacta 

1998) 175; and id., Faktizität und Geltung – Beiträge zur Diskurstheorie des Rechts und des 
demokratischen  Rechtsstaats  (Suhrkamp  1992)  138  stating  that  those  regulations  are 
legitimate  which  alle  possibly  affected  persons  might  approve  as  participants  in 
rational  discourse.  Seyla  Benhabib,  'Another  Universalism:  On  the  Unity  and 
Diversity  of  Human  Rights'  81  (2007)  Proceedings  and  Addresses  of  the  American 
Philosophical  Association  7,  21.  This,  however,  is  not  meant  to  suggest  that 
international, EU or national law are the result of a power free rational discourse. It 
merely shall indicate the need to objectify individual interests. 

105  Yet, it is important to clarify that this definition of law is not supposed to be superior 
to  any  other  definition  of  law.  Particularly  consent  as  a  source  of  law  has  been 
criticised recently. See only Andrew T. Guzman, Against Consent 52 (2012) Virginia 
Journal of International Law 747-790. My response regarding this so-called consent 
problem  is  twofold.  First,  I  argued  elsewhere  (see,  Lando  Kirchmair,  What  came 
first:  the  obligation  or  the  belief?  A  renaissance  of  consensus  theory  to  make  the 
normative  foundations  of  customary  international  law  more  tangible  59  (2017) 
German  Yearbook  of  International  Law  289-319)  that  there  is  still  something 
beneficial  in  consent  as  a  source  of  (customary  international)  law.  Second,  the 
definition of law made in this article is due to the task of finding a definition of law 
abstract  enough  to  serve  as  a  common  denominator  of  international,  EU  and 
national law. 

 
                                                 
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tertiis.106 Those principles apply due to pre-legal, reasonable107 reasons. These 
pre-legal principles must not be chosen arbitrarily. Their origin needs to be 
disclosed, because the assumed fiction should not deviate from conceivable 
or  even  already  scientifically  proven  pre-conditions.  The  pre-legal 
application of the pacta sunt servanda rule is based on the assumption that all 
individuals participating in a consensus must not deviate from the adopted 
compromise  in  order  not  to  violate  the  achieved  compromise.108  Another 
motivation not to violate the achieved compromise is that any violation could 
endanger  the  successful  adoption  of  a  future  compromise,  which,  for 
individuals,  would  again  be  positive.109    Irrespective  of  the  difference 
between  compromise  and  consensus  (not  every  consensus  must  be  a 

106 Koller (n 99) 12f. 
107  John Rawls, Politischer Liberalismus (1998, German translation by Wilfried Hinsch, 

Political liberalism, 1993) 120, note 1. 

108 Norbert Hoerster, Was ist Recht? Grundfragen der Rechtsphilosophie (C. H. Beck 2006) 
133 holding that justification of legal evaluation is reliant to ethical premises which in 
turn are related to a compromise of individual interests. 

109 Immanuel Kant,  Metaphysische  Anfangsgründe  der  Rechtslehre  (1797)  II. main  part 
2. Chapter § 19 especially 100 f stating that holding a promise is a postulate of pure 
reason.  Compare  also  John  L.  Brierly,  The  law  of  nations  (Oxford  University  Press 
1963)  56:  'The  ultimate  explanation  of  the  binding  force  of  all  law  is  that  man, 
whether he is a single individual or whether he is associated with other men in a state, 
is constrained, in so far as he is a reasonable being, to believe that order and not chaos 
is the governing principle of the world in which he has to live.' 
C.f.  [even  though  relating  to  pacta  sunt  servanda  and  international  treaties]  Georg 
Dahm,  Völkerrecht,  Vol.  I  (De  Gruyter  1958)  12,  especially  n.  17  holding  that  the 
minimum set of international legal order must include pacta sunt servanda, which 
holds  true  for  practical  reasons.  See  also  Jost  Delbrück,  ‚Begriff,  Geltung  u. 
Erscheinungsformen des Völkerrechts' in Georg Dahm et al. (eds), Völkerrecht, Vol. 
I/1 (2nd ed De Gruyter 1989) 27, 37, by saying who counts consens as a source of law 
implies  pacta  sunt  servanda  C.f.  id.,  ‚Verbindlichkeit  und  Geltungsbereich  der 
Verträge' in Georg Dahm et al. (eds), Völkerrecht, Vol. I/3 (2nd ed De Gruyter 2002) 
600,  600 f,  stating  that  pacta  sunt  servanda  and  pacta  tertiis  are  self-evident  'ius 
necessarium'. See also Jules Basdevant, 'Règles generals du droit de la paix' 58 (1936) 
Recueil des Cours Vol. IV  471, 642. C.f. Hans Wehberg, 'Pacta sunt servanda', 53 
(1959)  American  Journal  of  International  Law  775,  782  and  providing  an  overview 
Kirsten  Schmalenbach,  'Article  26'  in  Oliver  Dörr/Kirsten  Schmalenbach  (eds), 
Vienna convention on the law of treaties – A commentary (Springer 2012) para. 13-22 with 
further references. 

                                                 
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compromise),  these  notions  are  used  as  synonyms  here.  This  includes  the 
assumption that individuals have a reciprocal interest in forming legal rules 
to  coordinate  cohabitation  and  to  act  cooperatively.110  The  compromise  is 
thus  based  on  the  general  assumption  of  creating  positive  effects  for  all 
participating  individuals.  This  assumption  seems  to  be  justified  precisely 
because,  without  it,  a  binding  consensus  would  be  senseless.  Contrary  to 
social contract theories, these assumptions are not made in order to establish 
justice111  or  to  legitimize  specific  forms  of  a  societal 
principles  of 
organization.112 Without proposing a material content of just law, structural 
arguments  regarding  the  connection  of  individuals  through  consensus—in 
other words, law—shall dominate the articulated understanding of law. 

A situation where all individual interests are not represented equally can no 
longer be considered a consensus according to this definition. This would be 
the case, for instance, in situations in which individuals are discriminated or 
a  minority  lacks  acceptance.  The  disadvantaged  individual  or  minority  has 
the  de  facto  possibility  of  revolting  against  this  imposed  consensus.  This  is 
reflected in the pre-legal principle pacta tertiis nec nocent nec prosunt, which is 
analogous to the pacta sunt servanda principle, held to be pre-legally valid. If 
these principles are also reflected in positive law, they become a declaratory 
regulation,  which  renews  but  does  not  establish  their  validity.  However,  it 

110  For an interesting analysis arguing that rules are a cognitive phenomenon based on 
an  inborn  (moral)  competence  similarly  to  the  language  faculty  brought  up  by 
Chomsky,  see  Matthias  Mahlmann,  Rationalismus  in  der  praktischen  Theorie  – 
Normentheorie und praktische Kompetenz (2nd ed Nomos 2009). See also an overview of 
the  current  debate  in  evolutionary  psychology  given  by  Michael  Tomasello  and 
Amrisha Vaish, 'Origins of Human Cooperation and Morality' (2013) Annual Review 
'Morality  Between  Nativism  and 
of  Psychology  231  ff.  Lando  Kirchmair, 
Behaviorism:  (Innate)  Intersubjectivity  as  a  Response  to  John  Mikhail's  John 
Mikhail's  'Universal  Moral  Grammar'  37(4)  (2017)  Journal  of  Theoretical  and 
Philosophical Psychology 230-260. 

111  John Rawls, Eine Theorie der Gerechtigkeit (1975 German translation by H. Vetter, A 
theory  of  justice,  1971);  id.,  Das  Recht  der  Völker  (2002  German  translation  by  W. 
Hinsch, The law of peoples, 1999). 

112  Koller (n 99) 17, who indicates that social contract theories have—on the one hand—
to determine an acceptable starting point allowing for a fair agreement. On the other 
hand,  these  social  contract  theories  aim  to  show  which  principles  find  reasonable 
acceptance by all participants. 

 
                                                 
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reinforces the importance of these principles and therefore strengthens the 
pre-legal assumptions made. In this regard, the choice for consensus seems to 
be justified to a certain extent by the fact that consensus has been positivized 
as  an  important  source  of  law  in  international  law.113  Moreover,  EU  law  is 
actually the prime example of a legal order which is based on a real (founding) 
consensus: the treaties. 

Another parallel to social contract theories is the assumed equality between 
all individuals. This assumption was based on Thomas Hobbes's argument of 
empirically  equal  human  beings114  and  John  Locke's  presupposed  equality 
among  individuals  as  a  natural  right.115  Jean  Jacques  Rousseau  also 
acknowledged  equality  of  people  as  a  fundamental  precondition  for  his 
version  of  the  social  contract,116  as  did  John  Rawls  in  his  famous  'veil  of 
ignorance'.117 Being aware of the importance of equality amongst individuals, 
this article will assume that equality.  

In order to analyze the relationship between international, EU and national 
law, it is necessary to  outline the underlying concept of law. Following the 
aforementioned  conditions,  law  is  simply  defined  as  a  binding  consensus 
(Willensübereinkunft) of all participating individuals. The consensus element 
may  be  fulfilled  by  different  actions,  such  as  explicit,  implied  or  tacit 
acceptance.118  However,  only  consensus  between  two  or  more  individuals 

113  Art. 26 and 35 VCLT. 
114  Compare  Hobbes  (n  100)  102  on  the  empirical  equality  of  humans  in  the  state  of 

nature. See for criticism Koller (n 99) 18 f. 

115  Locke (n 101) 203. 
116  Rousseau (n 102) 1. book, 6. chapter, 17 f, who argues even for expropriation in order 

to achieve equality. 

117  Rawls (n 111) 36. However, see also criticism of the idea of equality by Robert Nozick, 
Anarchie, Staat, Utopie (1974 Anarchy, State, and Utopia, German translation by H. 
Vetter 1976) 214 ff. James M. Buchanan, Die Grenzen der Freiheit, Zwischen Anarchie 
und Leviathan (1975 The Limits of Liberty, Between Anarchy and Leviathan, 1984) 1 
ff, who also designed his social contract theory without individual equality. Koller (n 
99) 19, 188. Nevertheless, see Buchanan (n 117) 2 on the necessity for methodological 
individualists to recognize fellow human beings. 

118  Compare for such an understanding of consensus also Rüdiger Wolfrum and Jakob 
Pichon, 'Consensus' in Rüdiger Wolfrum (ed), MPEPIL online edition (2010) para 3. 

                                                 
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may produce an objective, i.e. common legal rule.119 The consensus produces 
objectivity because it unifies the individual interests of the participants. The 
resulting  overlapping  interest,  for  example,  a  common  rule  to  organize 
cohabitation, becomes objective through the binding consensus. Consensus 
is furthermore understood in an abstract way, with collective will being the 
central  idea.  How  this  common  will  is  ascertained,  however,  shall  not  be 
analyzed.  On  the  contrary,  it  will  be  assumed  as  a  starting  point.  The 
conviction  of  the  individuals  concerned  with  whether  they  can  establish  a 
positive compromise is assumed to be a sufficiently stabilizing element for 
this legal concept and its binding character.120 The pre-legal, reasonable pacta 
sunt servanda principle reflects this. 

2. The Theory (of the Law Creators' Circle) 

A. Definition 

The  law  creators'  circle  is  defined  as  the  circle  of  two  or  more  individuals, 
which  originates  in  the  creation  of  one  single  binding  consensus.  In  other 
words, the law creators' circle originates through the creation of law, which 
rests upon the consensus of individuals. If the very same individuals create 
another consensus, this is to be considered as a supplement to the same law 
creators'  circle.  As  a  consequence,  individuals  may  only  create  a  binding 
consensus  for  themselves.121  Accordingly, 
law  creators  are  only  the 
individuals,  who  are  simultaneously  the  creators  and  the  addressees  of  the 
consensus. 

In terms of their relationship to each other, the individuals who do not share 
a  single  law  creators'  circle  remain  in  the  legal  desert.  Figure  1  below, 
illustrates two law creators' circles which are constituted by wholly different 

119  Weinberger (n 103) 73. 
120  The  binding  character  is  considered  to  be  an  implied  element  of  the  consensus. 
Eugenio Bulygin, 'Das Problem der Geltung bei Kelsen' in Stanley L. Paulson and 
Michael  Stolleis  (eds),  Hans  Kelsen  –  Staatsrechtslehrer  und  Rechtstheoretiker  des  20. 
Jahrhunderts (Mohr Siebeck 2004) 80, 88f with further references at p. 95; Matthias 
Knauff, Der Regelungsverbund: Recht und Soft Law im Mehrebenensystem (Mohr Siebeck 
2010)  25,  who  speaks  of  a  specific  characteristic  of  law  that  legal  validity  rests  on 
useful conventions. 

121  See the above-mentioned pre-legal pacta tertiis principle, II. 

 
                                                 
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individuals — for example, individuals A, B and C on the one hand and D, E 
and F on the other hand. 

A, B and 
C 

D, E and F 

Figure 1 

Figure 1 

However,  this  does  not  imply  any  judgment  of  the  legal  desert.  The  legal 
desert is a neutral, pre-legal status. Furthermore, there is the need to stress 
once again: one single consensus on a specific matter suffices to constitute a 
law creators' circle between the participating individuals. 

B. Conflicts between Different Law Creators' Circles 

Individuals who do not share the same law creators' circle are, in relation to 
each  other,  in  the  legal  desert  (see  Figure  2  below;  the  different  colours 
illustrate  that  these  two  law  creators'  circles  established  rules  with  non-
identical  content).  However,  this  is  just  theoretically  relevant  because 
nowadays ius cogens rules — even though in a very fundamental and limited 
sense  —  provide  practically  for  universal  fundamental  rules  by  the  largest 
possible law creators' circle. Naturally, the status of a legal desert regarding a 
specific subject matter lasts only until individuals join a law creators' circle 
and consent upon this specific subject matter. 

A, B and 
C 

D, E and F 

Figure 2 

 
 
 
 
 
 
 
 
 
 
 
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Different  law  creators'  circles  are  less  of  a  concern.  Yet  if  they  overlap, 
problems  may  arise.  Law  creators'  circles  overlap  if  an  individual  is,  at  the 
same time, a member of two different circles whose total members are not 
fully identical (see Figure 3 below). This would be the case, for instance, if the 
white  circle  includes  individuals  A,  B,  and  C  and  the  blue  circle  includes 
individuals  C,  D,  and  E.  Recall  that  individuals  participating  in  one  law 
creators' circle are by definition creators and addressees of the consensus. 

A and B 

C 

D, E and F 

Figure 3 

Overlapping circles are unproblematic if they include completely diverging 
subject  matters  (see  the  different  colours  of  the  circles  in  Figure  3  above, 
which indicate that the white and the blue circles relate to different subject 
matters). However, if one or more individuals are at the same time members 
of different but partly overlapping law creators' circles regulating the same 
subject matter, they are possibly conflicting (see Figure 4 below). 

A and 
B 

C 

D, E and F 

Figure 4 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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A norm conflict arises if the application of any right or duty in one circle is 
contradictory  to  any  right  or  duty  in  the  other  circle  of  which  the  same 
individual is also a member (see Figure 4 above).122 Once a consensus has been 
established by a law creators' circle, it must not be infringed upon by a single 
individual, either by simply breaching the consensus without the acceptance 
of the other members of this law creators' circle, or by stating a conflicting 
consensus with other individuals (pacta sunt servanda as well as pacta tertii).123 
In other words, if A, B, and C agree that x is a forbidden action, B, C, and D 
must not allow x either. However, regarding the solution of this conflict of 
norms, we remain in the legal desert. As far as different law creators' circles 
are concerned, the well-known norm conflict solution rules like the maxim 
lex  posterior  and  lex  specialis  do  not  provide  a  solution.  It  is  important  to 
emphasize  that  these  norm  conflict  solution  rules  may  only  provide  for  a 
solution within one and the same law creators' circle. This, however, does not 

122  Hans Kelsen, Allgemeine Theorie der Normen (Manz 1979) 99; Similarly Kelsen (n 31) 
209.  See  also  Ewald  Wiederin,  ‚Was  ist  und  welche  Konsequenzen  hat  ein 
Normkonflikt' 22 (1990) Rechtstheorie 311, 318, who specifies this by stating that also 
conflicts between commanding and permitting norms are norm conflicts at 324. This 
also applies in cases of de facto inability (316). See also Erich Vranes, 'The Definition 
of  ‚Norm  Conflict'  in  International  Law  and  Legal  Theory',  17  (2006)  European 
Journal of International Law 395, 418 who also argues in favor of a broad definition 
of norm conflicts. See also Kirsten Schmalenbach, 'Article 53' in Oliver Dörr/Kirsten 
Schmalenbach (eds), Vienna convention on the law of treaties – A commentary (Springer 
2012) para 54. Cf. Karl Engisch, Die Einheit der Rechtsordnung (Winter 1935), p. 46; and 
id.,  Einführung in  das juristische denken  (7th ed.  Kohlhammer 1977) 162. Cf. Thomas 
Zoglauer,  Normenkonflikte  –  zur  Logik  und  Rationalität  ethischen  Argumentierens 
(Frommann-Holzboog 1998) 125 ff. For a more narrow definition, which is often used 
on the international level, see Wilfred Jenks, 'The conflict of law-making treaties', 
30 (1953) British Yearbook of International Law 401, 426: 'A conflict in the strict sense 
of  direct  incompatibility  arises  only  where  a  party  to  the  two  treaties  cannot 
simultaneously comply with its obligations under both treaties.' And also Gabrielle 
Marceau,  'Conflicts  of  norms  and  conflicts  of  jurisdictions:  The  relationship 
between  the WTO  agreement  and  MEAs  and  other  treaties',  35  (2001)  Journal  of 
World Trade 1081, 1084. 

123  Erich  Vranes, 

'Lex  superior,  lex  specialis,  lex  posterior  –  Rechtsnatur  der 
'Konfliktlösungsregeln', 65 (2005) Heidelberg Journal of International Law 391, 402, 
n. 48. 

                                                 
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prevent a norm conflict solution circle from being created which embraces 
both conflicting circles (see Figure 5 below). 

A, B, and C 

A and B 

C 

D, E and F 

D, E and F 

Figure 5 

But if there is no embracing conflict solving circle, those individuals remain 
in the norm conflict solving legal desert. Of course, this does not mean that 
conflicts  might  not  be  solved  peacefully  and  satisfactorily.  But  there  is  no 
legal norm conflict solution rule. The theory of the law creators' circle does 
not  provide  any  solution  for  the  constellation  of  partly  overlapping  and 
conflicting law creators' circles either.  

C. The Theory of the Larger Law Creators' Circle 

The theory of the larger law creators' circle is based on the aforementioned 
pre-legal assumptions, which are the principles pacta sunt servanda and pacta 
tertiis. According to these pre-legal principles, the TLCC is fundamental for 
all  agreed  consensuses.  If  a  legal  rule  has  been  created  by  a  consensus, 
unilateral abrogation is no longer possible. The rule of the larger law creators' 
circle  always  prevails  over  the  rule  of  the  smaller  circle,  if  —  and  this  is 
important — all members of the smaller circle are also members of the larger 
circle — which means that the smaller circle is absorbed by the larger circle. 
(See figure 6 below, which illustrates that A, B, and C constitute the smaller 

 
 
 
 
 
 
 
 
 
 
 
 
 
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circle  that  is  completely  absorbed  by  the  larger  circle  of  A,  B,  C,  D,  and 
further individuals and so on and so forth). 

A, B and C 

A 
B 
C 
D 

A 
B 
C 
D 
E 

Figure 6 

To  illustrate  this,  I  will  discuss  an  example:  if  A,  B,  and  C  (the  larger  law 
creators'  circle)  ban  smoking  in  their  shared  flat,  then  A  and  B  alone  (the 
smaller law creators' circle) may not re-instate smoking or smoke in their flat 
without  C's  acceptance.  Consequently,  the  content  of  the  agreed  rule  is 
decisive. The consensus of the larger law creators' circle must not be violated 
or hindered by a conflicting rule set up by the smaller law creators' circle. If 
the consensus were to be violated by one or more individuals, this would be a 
clear breach of the consensus of the larger circle and would thereby violate 
the pre-legal principle pacta sunt servanda.  

If the smaller circle does not break a rule of the larger circle, then the smaller 
circle is free to agree on whatever rules its members would like. For instance, 
it may agree upon further, more specific rules as long as they do not conflict 
with  a  rule  of  the  larger  circle.  To  illustrate  this,  I  re-visit  the  'smokers' 
example: in this scenario, A, B, and C ban smoking again, not only in their flat 
but also in the pub they frequent. At first glance, it seems less likely that A 
and B should not be allowed to smoke a cigarette in the pub if they wish to do 
so when going out one evening without C. To understand this, it is important 
to take a close look at the consensus agreed upon between A, B, and C. It is 

 
 
 
 
 
 
 
 
 
 
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essential  to  know  whether  they  agreed  to  stop  smoking  in  general  or  just 
when  in  each  other's  company.  If  the  agreed  consensus  aims  at  preventing 
them from smoking in general — regardless of the place and whose company 
they are in — it is only possible for all three of them together to change or end 
their agreed consensus.  

The change of location from their flat to a public bar is intended to show that 
the content of the agreed consensus is crucial. It is much more likely that they 
would agree to a ban on smoking in their flat, even if for different reasons, 
than they would do so in general (also in the pub). Therefore, one might think 
that A and B are free to smoke in the bar if the consensus agreed upon by A, 
B,  and  C  does  not  contain  any  specifications  or  any  explicit  command 
forbidding them to deviate from this. But if it does include a specification or 
an  explicit  command  and  it  is  clear  that  the  consensus  is  a  general  ban  on 
smoking, they may only override or change it by all three acting together. The 
command not to deviate from the agreed consensus might, furthermore, be 
implicitly found in the smoking ban in relation to the shared flat. Without 
any  further  specification  of  the  consensus,  we  can  only  assume  that  the 
command  not  to  deviate  originated  from  the  consensus  itself.  In  the  pub 
example, an explicit command stating that a deviation from the agreed ban is 
or is not allowed might be seen as necessary in order to clarify that A or B, 
alone  or  together,  might  deviate  from  the  ban.  Without  this  explicit 
command, one could assume that A and/or B are allowed to smoke when C is 
not  present.  However,  if  an  explicit  command  not  to  smoke  in  the  pub, 
whether alone or with others, has been agreed on by all three, it is clear that, 
according to the theory of the larger law creators' circle, any agreement by A 
and/or B (the smaller circle) to allow smoking in the pub would violate the 
consensus of A, B, and C (the larger circle). Consequently, it is paramount to 
know whether the smaller circle has simply established a more specific rule 
which does not conflict with the consensus of the larger circle, or whether the 
smaller circle rule directly violates the consensus of the larger circle.  

While a mere specification of a rule is not problematic, a norm conflict is. A 
norm conflict caused by the rule of the smaller circle conflicting a rule of the 
larger  circle  contravenes  the  theory  of  the  TLCC  and  the  pre-legal, 
reasonable principle of pacta sunt servanda which it is based on. If the larger 
law creators' circle gives a material command, the smaller law creators' circle 

 
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must obey this command. If the larger circle agrees on a certain consensus, 
this same consensus may only be changed or deviated from on the same level 
as  it  was  agreed  on  (the  larger  circle).  This  also  applies  to  the  legal 
consequences  and  effects  of  the  consensus  on  the  members  of  the  smaller 
circle. 

According to the TLCC, if the members of the different law creators' circles 
are not identical or fully included in a larger circle, it is not possible for the 
smaller  law  creators'  circle  to  be  overruled  by  the  larger  circle.  This  larger 
circle is not related to the smaller circle because the members of the different 
circles are not identical (see Figure 7 below). Therefore, it does not matter if 
those circles include conflicting rules regarding their subject matters because 
both apply the pacta tertii principle. The circles are, in relation to each other, 
in the legal desert. 

A, B and C 

D and E 

Figure 7 

If some, but not all, of the members of both circles with conflicting subject 
matters  are  identical,  the  case  is  different  (see  Figure  8  below).  The 
constellation of Figure 8 is very  close to the constellation of Figure 4. The 
question  is  whether  the  size  difference  between  constellation  4  and 
constellation 8 is relevant. It is important to note that the constellation in 
Figure 8 is impossible with regards to the relationship between international 
and  national  law  because  the  State  (the  smaller  law  creators'  circle) 
participates in the making of law in the international sphere (the larger law 
creators'  circle)  as  a  unity,  acting  on  behalf  of  its  individuals.  Yet, 
theoretically speaking, it is important to note that the case of Figure 8 is not 
the primary application of the theory of the larger law creators' circle. The 
difference from the constellation illustrated in Figure 4 is too insignificant. 

 
 
 
 
 
 
 
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Therefore, either a larger circle embracing both circles governs the conflict 
(see Figure 5 above) or the individuals concerned remain in the legal desert 
with regards to the solution of the norm conflict. 

A, B and C 

D  E and F 

Figure 8 

D. Legal Consequences Resulting from a Violation of the Consensus of the Law 
Creators' Circle 

In terms of the relationship between international, EU, and national law, the 
TLCC  forces  us  to  analyze  the  contents  of  the  rulings  of  the  larger, 
international (or EU with regards to national) law creators' circle. Contrary 
to prevailing theories on this relationship, there is no general, blanket legal 
consequence  leading  to  an  absolute  or  otherwise  standardized  legal 
consequence  or  effect  of  international  law  within  the  national  legal  order. 
Consequently,  the  TLCC  does  not  stipulate  a  single  absolute  legal 
consequence.  Generally  speaking,  the  smaller  law  creators'  circle  lacks  the 
ability  to  create  a  rule  that  conflicts  with  any  rule  of  the  larger  circle 
(rechtliches Können). The larger circle is free to change this general situation. 

With  regards  to  the  relationship  between  EU  and  Member  State  law,  the 
supremacy of EU law stipulates that Member States can make law conflicting 
with EU law (rechtliches Können). However, they are not allowed to make such 
law  and  in  case  they  do  anyhow,  conflicting  Member  State  law  is  not 
applicable  (rechtliches  Dürfen).124  In  order  to  identify  the  effect  of  EU  law 

124  Case C-6/64 Costa v ENEL ECLI:EU:C:1964:66.  

 
 
 
 
 
 
 
 
                                                 
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within the Member State legal orders, the doctrine of direct effect is very well 
known.125  

Before coming to the peculiarities of the supranational EU legal order, a brief 
discussion of the relationship between international and EU or national law 
shall further illustrate what I have in mind. Using the relationship between 
international and EU or national law as an example, EU law or national law 
(the smaller law creators' circle)  lacks the ability to create rules conflicting 
with ius cogens norms. EU or national rules conflicting with ius cogens are null 
and void ex tunc. The existence of ius cogens, however, suggests that the smaller 
law creators' circle (EU law or national law, both with regards to international 
law) has the ability to create EU or national rules that conflict with general 
international law without ius cogens character (rechtliches Können), but lacks the 
authorization to do so (rechtliches Dürfen). This implies that the focus should 
be on the emergence of international law. More recent EU or national law 
lacks  the  authorization  to  subsequently  change  —  or  even  deviate  from  — 
international law by incorporating it into the EU or national legal order via 
reception theories. Therefore, it becomes crucial to analyze the content of 
the international rulings of the larger law creators' circle. The consensus of 
the  larger,  international  circle  is  decisive  when  the  legal  consequences  or 
effects of international law are analyzed in relation to national law. 

Having said this, it is important to note that most of the international rules 
do  not  stipulate  a  far-reaching  effect  on  national  law:  (i.)  Solely  applicable 
(schlicht  anwendbare)  international  rules  must,  therefore,  be  differentiated 
from  (ii.)  directly  applicable  (direkt  anwendbare),  and  (iii.)  individualizing 
(individualisierende) rules.  

(i) Solely Applicable Rules 

Solely  applicable  rules,  also  called  inter-State  laws,  leave  it  up  to  the 
discretion of the national legal order to decide how to implement these rules 
domestically.  Typical  wording  for  such  provisions  is  quite  abstract, 
formulating  only  general  obligations,  which  are  then  subject  to  further 
specification by national laws. Even today, most of the international rules are 

125  Andreas  Th.  Müller,  Effet  direct.  Die  unmittelbare  Wirkung  des  Unionsrechts  (Mohr 

Siebeck forthcoming). 

                                                 
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still solely applicable, which means that they do not have a direct effect within 
the national legal order. Therefore, further specification of the international 
rule,  for  instance  by  national  acts,  is  necessary.  The  EU  or  national  act 
concretises  and  thereby  'implements'  the  general,  i.e.  solely  applicable, 
international rule. The TLCC does not challenge this. The TLCC is not an 
ideological project aiming at advancing international law to have more effect 
within  national  law.  With  regards  to  the  relationship  between  EU  and 
Member State law this category, very roughly speaking, fits directives in EU 
law (Article 288 TFEU).126 

(ii) Directly Applicable Rules 

In contrast, directly applicable rules — in other words, self-executing rules — 
give no discretion to the national legal order in deciding how to implement 
these rules domestically. Directly applicable norms take effect within the EU 
or national legal order without any EU or national act except for ratification, 
and consequently simply do not leave discretion to the national legal order.127 
In this case no further national act is needed and EU or national law-applying 
organs — such as the courts — have to apply it directly .128 If an international 

126  However, as is well known: badly implemented or too late implemented directives 
can,  nevertheless,  have  direct  effect.  C-6/90  and  C-9/90  Francovich  v  Italy 
EU:C:1991:428. Yet, a detailed analysis of the legal acts of EU law on Member States' 
legal orders when thinking with the TLCC must be postponed due to a lack of space.  
127  Alfred Verdross and Bruno Simma, Universelles Völkerrecht – Theorie und Praxis (3rd 
ed Duncker & Humblot 1984) 550; Stefan Griller, Die Übertragung von Hoheitsrechten 
auf  zwischenstaatliche  Einrichtungen  (Springer  1989)  355,  who  defines  direct 
applicability [even related to the EU] as national validity of individual international 
law norms with direct legal effect without any interference of an additional national 
act. Compare furthermore August Reinisch, 'Zur unmittelbaren Anwendbarkeit von 
EWR-Recht'  (1993)  Zeitschrift  für  Europarecht,  Internationales  Privatrecht  und 
Rechtsvergleichung  11,  15,  with  further  references  in  n.  40;  and  Yuji Iwasawa,  'The 
doctrine of self-executing treaties in the United States: A critical analysis' 26 (1986) 
Virginia  Journal  of  International  Law  627,  632,  n.  27;  compare  also  Thomas 
Buergenthal, 
'Self-executing  and  non-self-executing  treaties  in  national  and 
international law' 235 (1992) Recueil des Cours Vol. IV 303, 317.  

128  Karen  Kaiser,  'Treaties,  direct  applicability'  in  Rüdiger  Wolfrum  (ed),  MPEPIL 
online edition (2011) para. 1; Karel Vasak, 'Was bedeutet die Aussage, ein Staatsvertrag 
sei 'self-executing'? – Zum Erkenntnis des Verfassungsgerichtshofs vom 27.6. 1960, 
B 469/59' 24 (1961) Juristische Blätter 352, 352. 

 
                                                 
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treaty or a provision of it is directly applicable, the smaller (EU or national) 
circle  has  already  accepted  this  effect  by  agreeing  to  the  consensus  at  the 
international level. A subsequent unilateral EU or national derogation of the 
deliberately  consented  direct  applicability  of  the  international  treaty  is 
opposed according to the TLCC. Again, very cautiously, this category relates 
best to EU regulations (Article 288 TFEU).  

(iii) Individualizing Rules 

A  third  category  of  international  rules,  which  can  be  distinguished  from 
solely  and  directly  applicable  rules,  is  individualizing  rules.  Individualizing 
rules are those international rules that directly address individuals, without 
the need for an EU or national organ to enforce or apply them. They bind or 
grant  rights  to  individuals  directly  without  the  EU  or  a  State  intervening 
(again, except for the making of this international norm).129 Individualizing 
international  rules  are  rules  which  are  not  directed  towards  the  EU  or  the 
State, but directly towards the individual without using the EU or the State 
as a mediator. Several international criminal law norms or—with regards to 
national  law  only—also  Article  34  of  the  European  Convention  on  Human 
Rights  as  well  as  similar  provisions  constitute  examples  for  individualizing 
rules. In this case again, there is no need for any incorporation, adoption or 
transformation of the international rule into the EU or national legal order. 
The Charter of Fundamental Rights of the EU as well as the possibility of 
individuals to launch actions for annulment (Article 263 (4) TFEU) come to 
mind when speaking about individualizing rules of EU law. 

E. The Connection between Law Creators' Circles130 

Based  on  the  analysis  in  the  previous  sections,  the  larger  the  law  creators' 
circle, the thinner the regulation density becomes. The consensus also tends 
to be more abstract and fundamental the larger a circle becomes. However, 
this is not a theoretical restriction on the regulatory possibility of the larger 

129  Compare the enumeration made by Jost Delbrück, ‚Das Individuum im Völkerrecht' 
in Georg Dahm et al. (eds), Völkerrecht Vol. I/2 (2nd ed De Gruyter 2002) 259, 263f 
with further references. Griller (n 4) 96, 98 ff; Anne Peters, Jenseits der Menschenrechte: 
Die Rechtsstellung des Individuums im Völkerrecht (Mohr Siebeck 2014). 

130  Of Those Circles of Which the Larger Circle Includes All Members of the Smaller 

Circle, See Figure 6. 

                                                 
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Who Has the Final Say? 

89 

or  even  largest  possible  law  creators'  circle.  Rather,  this  is  a  practical 
phenomenon.  The  more  individuals  that  are  involved,  the  more  difficult  it 
becomes to reach a consensus. But, theoretically, if all legal rules stemmed 
from  the  same  largest  conceivable  law  creators'  circle  embracing  all 
individuals, no smaller law creators' circles would exist. Practically, this is not 
(yet)  the  case.  Therefore,  many  subject  matters  are  not  embraced  by  an 
international, or even a very large EU, law creators' circle. Hence, only the 
most  fundamental  rules  are  embraced  by  the  largest  possible  law  creators' 
circle. All but these rules are left to smaller law creators' circles at the next 
smaller  level.  This  continues  until  the  smallest  possible  level  of  two 
individuals. The TLCC's only condition is that the rules of the smaller law 
creators' circle must not conflict with a rule of the larger law creators' circle. 

of 

validity'131 

the  Kelsenian 

In reading this, one might be tempted to compare the thoughts articulated 
here  with 
(in  German, 
'chain 
Delegationszusammenhang, on which the hierarchy of norms, Stufenbau nach der 
rechtlichen  Bedingtheit,  is  based).132  The  main  characteristic  of  this  chain  of 
validity is that a norm can derive its validity only from another norm.133 As a 
consequence  of  this  conviction,  monism  with  primacy  of  international  law 
stipulates that all national law derives validity from the higher international 
law.134  Similarly  the  'competence-theory'  of  Verdross  holds  that  State-
sovereignty is a competence derived from international law and thereby the 
existence of an international constitution is assumed.135 Besides other crucial 

131  Raz (n 35) 105; Starke (n 23) 75. 
132  Kelsen (n 31) 196 ff, 221-222.  
133  Ibid; For a critical account of the Stufenbaulehre see, for example, Jakab (n 40). 
134  Kelsen (n 122) 221;  Verdross (n 8) 35. Compare for criticism thereof (using the legal 
order of the EU as an example) Lando Kirchmair, 'Die autonome Rechtsordnung der 
EU und die Grenzen von Monismus und Dualismus' in Matthias C. Kettemann (ed), 
Grenzen im Völkerrecht – Grenzen des Völkerrechts (Jan Sramek 2013) 275. 

135  Alfred  Verdross,  Die  Einheit  des  rechtlichen  Weltbildes  auf  Grundlage  der 
Völkerrechtsverfassung 
(Mohr  Siebeck  1923)  31-35.  This  assumption  of  the 
'Kompetenz-Kompetenz,' located at the international sphere becomes even more 
clear by the statement of Alfred Verdross, 'Le fondement du droit international' 16 
(1927)  Recueil  des  Cours  Vol.  I  247,  319.  Compare  generally  concerning  the 
'competence-theory'  of  Verdross  Anke  Brodherr,  Alfred  Verdross'  Theorie  des 
gemäßigten Monismus (Herbert Utz 2004) 75 ff. 

 
                                                 
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differences  between  the  'chain  of  validity'  and  the  TLCC,  it  is  especially 
important  to  emphasize  that  the  connection  between  the  larger  and  the 
smaller  law  creators'  circle  according  to  the  TLCC  requires  only  that  the 
smaller  circle  must  not  infringe  any  rule  of  the  larger  circle.  If  a  specific 
subject matter is not regulated by a consensus at the level of the larger law 
creators' circle, the smaller circle is free to agree upon any consensus as its 
members wish. Consequently, the smaller law creators' circle is not derived 
from the larger circle and the validity of the rule of the smaller circle does not 
stem — at least not theoretically — from the larger circle. 

In a graphical nutshell: 

Table 3: The Theory of the Law Creators' Circle:  

TLCC 

Presuppositions 

- Pre-legal pacta sunt servanda. 
- Common understanding of the law (however, only in 
case we want norm conflict solution). 

Theoretical 
Outcome 

- Common denominator for norm conflict solution. 
- Authorization for norm creation of the smaller circle 
in the larger circle. 

Legal 
Consequences 

Failure 

- Larger circle's consensus trumps (identical) smaller 
circle's consensus. 
- Smaller circle must not unilaterally derogate from the 
consensus of the larger circle. 
- Content is decisive (in terms of analysing whether 
the smaller circle is bound by a consensus of the larger 
circle). 
? 

3. Practical Application of the TLCC 

Now that the theory has been spelled out, the final Section aims at testing its 
applicability with the example of the European Union and its relationship to 
its  Member  States  (III.3.a.)  as  well  as  towards  other  (international)  legal 
orders (III.3.b.). 

  
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Here, I apply the TLCC to the relationship between EU law and Member 
State  law  as  well  as  EU  law  and  international  law.  I  am  convinced  that  a 
theory-based argument analyzing the relationship between international, EU 
and Member State law will fruitfully contribute to key issues in EU law such 
as the doctrine of direct applicability or the primacy question between EU 
law and the fundamental constitutional law of its Member States as well as to 
the  relationship  between  EU  and  international  law.  It  could  provide 
convincing  theoretical  argumentation,  solving  potential  tensions  between 
the  constitutional  courts  of  some  Member  States  and  the  CJEU  as  well  as 
other international courts and tribunals. For example, arguments embedded 
in a sound theoretical explanation may help to clarify such questions as the 
tension  between  European  integration  and  the  (German)  'constitutional 
identity' which, according to the German Constitutional Court, is resistant 
to  integration.136  Moreover,  the  famous  'Kadi  saga'137  could  be  seen  in  a 
slightly different light as well. 

A. EU Law and Member State Law 

According to the TLCC, the EU is the larger law creators' circle with regards 
to its Member States. All EU Member States in turn are independent smaller 
law creators' circles which are also part of the EU circle. This is illustrated by 
Figure 6 above. The consensus established at the level of the larger EU law 
creators' circle must not be violated unilaterally by a smaller Member State 
law  creators'  circle.  However,  it  only  concerns  the  content  that  has  been 
consented  to.  For  any  further  consensus,  the  smaller  law  creators'  circles 
remain free to consent on what they wish. This stands in contrast to a monist 
understanding of the relationship between EU and Member State law. The 
TLCC does not hold that Member State law is delegated from EU law. Nor 
does the TLCC assume that in order to conceive EU law and Member State 
law both as law, it is logically necessary to  conceive them as a unitary  legal 

136  Mattias Kumm, 'Rebel Without a Good Cause: Karlsruhe's Misguided Attempt to 
Draw the CJEU into a Game of 'Chicken' and What the CJEU Might do About It' 
(2014) 15(2) German Law Journal 203-215. 

137  C-402  &  C-415/05P  Kadi v  Commission EU:C:2008:461;  C-584,  C-593,  &  C-595/10P  
Commission    v    Kadi  EU:C:2013:518.  C.f.  Matej  Avbelj,  Filippo  Fontanelli  and 
Giuseppe  Martinico  (eds),  Kadi  on  Trial:  A  Multifaceted  Analysis  of  the  Kadi  Trial 
(Routledge 2014). 

 
                                                 
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order.138 The TLCC only states that once a consensus has been reached at the 
level of a larger law creators' circle (which in our case here is EU law), then it 
must not be derogated unilaterally by a smaller law creators' circle. If the aim 
is to solve norm conflicts as defined above, then and only then is a common 
denominator,  i.e.  a  common  definition  of  law,  necessary.  In  contrast  to 
dualism or pluralism the TLCC provides an argument for where to look for 
such common ground. It is the consensus at the level of the larger circle. 

Reaching a consensus at the level of the larger circle might be eased by formal 
procedures  such  as  majority  ruling  or  the  authorization  of  certain  specific 
organs to create law and so on and so forth. This has often happened in the 
EU  by  now  as  it  has  developed  into  a  supranational  organization  with 
constitution-like character traits.139 Law making in the EU shows roughly all 
the basic rule-of-law criteria. However, it is important to emphasize that the 
TLCC is not about triggering yet an(other) argument as to whether the EU is 
truly a constitutional community or what is missing in order for it to become 
one.  The  TLCC  is  simply  a  structural  argument  which  indicates  where  to 
look to answer questions such as who has the final say about certain subject 
matters. Hence, it is of utmost importance to understand clearly what the EU 
treaties and further legal life within the EU actually involve. 

The EU competence regime is decisive in this regard. It is vital to pinpoint 
exactly  which  competences  have  been  shifted  to  the  European  level.  To 
answer this question, it is important to define where the competence regime 
is regulated and who decides in case of a dispute about specific competences. 
The competences in Articles 2-6 TFEU are the starting point and in the case 
of conflict, the CJEU has the final say on matters of competences (Article 19 
TEU).  Member  States  are  referred  to  an  action  for  annulment  before  the 
CJEU in case they think the EU lacks competence because they themselves 
are  not  authorized  to  void  EU  acts.140  Roughly  speaking,  if  the  EU  has 
competence  for  a  specific  subject  matter,  the  EU  law  creators'  circle  may 

138  Gragl (n 32) 674, 685; Gragl (30). 
139  Case 294/83 Parti ecologiste 'Les Verts' v European Parliament EU:C:1986:166, para 23 
'the basic constitutional charter, the Treaty'. See also recently Case C-284/16 Slovak 
Republic v Achmea BV ECLI:EU:C:2018:158, para 33: 'the constitutional structure of 
the EU'. 

140 Case C-314/85 Foto-Frost v Hauptzollamt Lübeck-Ost ECLI:EU:C: 1987:452. 

                                                 
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Who Has the Final Say? 

93 

adopt legal acts. EU legal acts within the framework of EU competences are 
legally  binding  and  in  the  case  of  conflict  with  MS  law  they  enjoy 
supremacy.141 This is largely uncontested. 

The question is whether this supremacy has limits, i.e. whether there is a core 
of  a  national  'constitutional  identity'  which  is  resistant  to  this  supremacy. 
Similarly, as the TLCC does not say anything about the question as to which 
political  system  or  which  specific  norm  might  be  just,  neither  does  it  say 
whether  there  should  or  should  not  be  something  like  a  core  resistant  to 
integration. The TLCC is neutral towards the content. It does, however, say 
that  once  a  consensus  has  been  taken  at  the  level  of  a  larger  law  creators' 
circle,  this  consensus  must  not  be  violated  unilaterally  by  a  smaller  circle. 
Therefore,  it  is  crucial  to  analyze  the  norms  of  the  smaller  circle  which 
authorize  consensus  formation  in  the  larger  circle.  These  were  national 
norms on the authorization to conclude and ratify international treaties at the 
very beginning of the EU.142 By now, the EU autonomously regulates how its 
own legal edifice changes (Article 48 TEU on ordinary and simplified revision 
procedures). Major changes like the introduction of completely new treaties, 
for instance, are subject to ratification by all Member States.143 In effect, this 
means that they have to be ratified unanimously by the larger EU law creators' 
circle (in the sense of the abolishment of the old consensus at this level). A 
unilateral derogation by only a few Member States would clearly violate the 
consensus of the larger law creators' circle (which, of course, is not to say that 
this is not possible). An 'integration resistant core', on the one hand, must not 
violate any consensus which has been obtained at the level of the larger EU 
law creators' circle. On the other hand, the larger law creators' circle must not 
autonomously add competences without authorization by all of the smaller 

141  See  Case  C-6/64  Costa  v  ENEL  ECLI:EU:C:1964:66;  as  well  as  Case  C-10/97 
IN.CO.GE.'90  and  others  EU:C:1998:498;  Case  C-409/06  Winner  Wetten  GmbH 
EU:C:2010:503, para 55. 

142  For the designation authorization (instead of incorporation, implementation or the 

like) compare Kirchmair (n 10). 

143  Dieter  Grimm,  'The  role  of  national  constitutions  in  a  united  Europe'  in  Dieter 
Grimm, Constitutionalism. Past, present, and future (Oxford University Press 2015) 274, 
who holds 'that within the purview of European law the latter [national law] can no 
longer act in a self-determined manner'. Nevertheless, 'the EU has not yet acquired 
the right to determine its own legal basis'. 

 
                                                 
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law creators' circles. This also holds true for the interpretation of the scope 
of application of EU law, which essentially must be reflected in the consensus 
of the larger law creators' circle. This refers to the question on the scope of 
applicability of the Charter of Fundamental Rights,144 the rule of law crisis in 
the EU and judicial independence,145 as much as to the scope of autonomy of 
the EU legal order.146 

The  TLCC  also  puts  emphasis  on  the  question  as  to  how  to  interpret  the 
content  of  a  consensus.  The  Vienna  Convention  on  the  Law  of  Treaties 
(VCLT) offers rules for the interpretation for international treaties. Again, 
by now, the CJEU, based on Article 19 TEU, has developed its own array of 
interpretation techniques (as there is no provision clearly stipulating which 

144  Case  C-617/10  Åkerberg  Fransson  ECLI:EU:C:2013:105;  Case  C-206/13  Siragusa 
ECLI:EU:C:2014:126  regarding  the  scope  of  applicability  of  the  Charter  of 
Fundamental Rights and the general recurring debate about judicial activism. See, 
for instance, Allan Rosas, When is the Charter of Fundamental Rights applicable at 
national  level?  (2012)  19(4)  Jurisprudence  1269-1288,  1270  holding  that  the 
'introduction  of  a  fundamental  rights  regime  into  EU  law  is  essentially  a  story  of 
judge-made law'. 

145  Case  C-64/16  Associação  Sindical  dos  Juízes  Portugueses  v  Tribunal  de  Contas 
ECLI:EU:C:2018:117 holding basically that the CJEU is competent—relying on the 
principle of effective judicial protection enshrined in second subparagraph of Article 
19  (1)  TEU—to  evaluate  the  guarantee  of  independence  of  national  courts  and 
tribunals if this 'may concern the application or interpretation of EU law' (para 39). 
This  is  too  prime  example  of  the  fine  line  of  how  to  understand  the  competence 
regime of the EU as the appointment and removal of judges actually is an exclusive 
MS competence. 

146  See only recently Case C-284/16 Slovak Republic v Achmea BV ECLI:EU:C:2018:158 
and the confirmation that investment arbitration in an intra EU context is part of 
EU  law  (and,  thus,  within  the  competence  of  the  EU  and  the  jurisdiction  of  the 
CJEU). Therefore, investment tribunals in such a context lack jurisdiction as Art. 
267  and  344  TFEU  preclude  provisions  establishing  arbitral  tribunals  (para  62)  as 
they could 'interpret or indeed apply EU law' (para 42) and thereby endanger unity, 
primacy and effectiveness of EU law. While also this decision has caused an upheaval 
in academia and the 'arbitration world', the TLCC suggests actually simply to look 
at the competence of the larger law creators' circle, the EU legal order and whether 
there we find sufficient support for the approach taken—in the case at hand—by the 
CJEU. If one does so, it seems indeed, that EU law covers the approach taken. 

                                                 
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interpretation technique shall be used or be supreme in case of conflict147).148 
The interpretation techniques employed by the CJEU largely correspond to 
'classical techniques' well known in national law or those mentioned in the 
VCLT.149 I will not go into details here. For now, this indication shall suffice. 

B. International Law and EU Law 

The TLCC is based upon natural persons who reach a consensus. If A, B, and 
C agree upon a consensus, this must not be violated subsequently by B and C 
without A. What has just been said about the relationship between EU and 
Member State law also applies to the relationship between international and 
EU law. Once the law creators' circle of the EU has agreed upon a consensus 
with  a  larger,  international  law  creators'  circle,  it  must  not  violate  it 
unilaterally.  It  is  thus  decisive  to,  first,  clearly  identify  how  the  EU  law 
creators'  circle  can  establish  a  consensus  at  the  larger  international  level 
(Article 216-219 TEU). Second, it is important to determine the content of 
the consensus. This interpretation process is primarily the task of the level at 
which  the  consensus  has  been  agreed.  This  is  the  international  level.  For 
instance, in Achmea BV, the CJEU confirmed that in principle EU law allows 
for  an  international  agreement  establishing  a  court  which  interprets  the 
provisions of such an agreement with a binding nature for the CJEU.150 This 
is  accurate  also  when  thinking  with  TLCC.  Yet,  the  CJEU  added  the 
conditionality that this holds true 'provided that the autonomy of the EU and 
its legal order is respected'.151 I would add — again thinking with the TLCC — 
that this condition must be respected from those organs authorized by the 
EU legal order when concluding international agreements (and international 
law  more  generally).  This  conditionality,  however,  might  not  serve  as  an 
excuse for breaches of the concluded international agreements for instance 

147  Giulio Itzcovich, 'The Interpretation of Community Law by the European Court of 

Justice' 10(5) (2009) German Law Journal 539. 

148  Koen  Lenaerts  and  José  A.  Gutiérrez-Fons,  To  say  what  the  law  of  the  EU  is: 
Methods of interpretation and the European Court of Justice, EUI Working Paper 
AEL 
at  http://cadmus.eui.eu/bitstream/handle/1814/28339/ 
AEL_2013_09_DL.pdf?sequence=1&isAllowed=y.  

available 

2013/9, 

149  Ibid. 
150  Case C-284/16 Slovak Republic v Achmea BV ECLI:EU:C:2018:158 para 57. 
151  Ibid. 

 
                                                 
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in  form  of  unilateral  subsequent  derogations,  because  international  law  as 
such also does not allow for invoking provisions of internal law as justification 
for  a  failure  to  perform  a  treaty  (Art.  27  VCLT).  Third,  depending  on  the 
consensus, the effect of this consensus on the level of the smaller law creators' 
circle depends on whether the norm of the international law creators' circle 
is solely applicable, directly applicable or individualizing.152 

The  international  law  creators'  circle  knows  four  different  types  of  legal 
sources. These are, according to Article 38 of the Statute of the International 
Court  of  Justice  (ICJ),  (a)  international  conventions,  (b)  international 
custom, and (c) general principles of law. In addition, by now also (d) legal acts 
of  international  organizations  can  be  a  source  of  international  law.153 
Depending  on  each  source,  different  rules  about  their  making, 
interpretation,  and  their  legal  effect  are  applicable.  In  order  to  determine 
their effect within the level of the smaller, in our case, the EU law creators' 
circle, it is necessary to look closely at the process of making and interpreting 
them. Unfortunately, there is not enough space to do so here. What I would 
like to emphasize is that the TLCC is not about the content but about the 
structural relationship between law creators' circles. If there is a consensus at 
the larger law creators' circle, the smaller circle must not unilaterally violate 
this consensus. 

For instance, in the famous Kadi saga, the CJEU annulled an EU regulation 
because  this  regulation  implemented  United  Nations  Security  Council 
resolutions  sanctioning  suspected  terrorists  without  respecting  EU 
fundamental  rights.154  The  individual  Yassin  Abdullah  Kadi  was  associated 
with Usama bin Laden or the Al-Qaeda network and therefore was enlisted 
by  the  UN  Sanctions  Committee,  which  was  installed  in  the  aftermath  of 

152  III.2.d.i)-iii). 
153  Jörg Polakiewicz, 'International law and domestic (municipal) law, law and decisions 
of international organizations and courts' in Rüdiger Wolfrum (ed), MPEPIL online 
edition (2012), para 1. 

154  Joined  Cases  C-402/05  P  and  C-415/05  P  Kadi  v  Council  and  Commission 
EU:C:2008:461 (Kadi I); and  C-595/10 P Commission and others v Kadi EU:C:2013:518 
(Kadi  II).  For  an  overview,  Clemens  Feinäugle,  'Kadi  Case'  (2014)  Max  Planck 
Encyclopedia of Public International Law; Peter Hilpold, 'EU Law and UN Law in 
Conflict: The Kadi Case' (2009) 13 Max Planck Yearbook of United Nations Law, 
141-182. 

                                                 
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terrorist attacks on the embassy of the USA in Kenia and Tanzania in 1998. 
A  consequence  of  this  listing  was  the  freezing  of  Mr.  Kadi's  and  other 
individuals' or entities' European assets, which was implemented by an EU 
Regulation in 2002.155 Kadi challenged this listing in front of EU courts due 
to  alleged  violations  to  use  his  property  freely,  the  breach  of  the  right  to 
effective judicial review as well as the right to a fair trial according to Art. 6 
ECHR. The Court of Frist Instance, however, decided in 2005 that the Court 
has  no  authority  to  call  in  question  the  lawfulness  of UN  Security  Council 
Resolutions.156  While  this 
judgment  was  associated  with  a  monist 
understanding  of  the  relationship  between  EU  and  international  law,  the 
CJEU did not follow this direction. On 3 September 2008 the Court annulled 
the regulation concerning Mr. Kadi finding that the CJEU has jurisdiction to 
review the lawfulness of the contested regulation as it has to ensure full review 
of the lawfulness of all EU acts 'in the light of the fundamental rights forming 
an integral part of the general principles of Community law'.157 By so doing 
the CJEU found a breach of 'the rights of defence, especially the right to be 
heard, and of the principle of effective judicial protection.'158 Moreover, the 
Court found also that Mr. Kadi's fundamental right to respect for property 
had been violated.159 Following this decision the UN Sanctions Committee 
provided Mr. Kadi with reasons for his listing and gave him the possibility to 
comment.  Thereafter  the  Sanctions  Committee  decided  to  list  Mr.  Kadi 
again, which has again, implemented by Committee Regulation.160 Mr. Kadi 
also brought a case against this regulation before the General Court.161 Now 
the  General  Court  followed  the  reasoning  of  the  CJEU,  conducted  a  full 
review  of  the  challenged  regulation  and  annulled  it  on 30  September  2010. 
The  reasons  given  were  that  the  information  and  evidence  regarding  the 

155  Council Regulation 881/2002 of 27 May 2002. 
156  Case  T-315/01,  Kadi  v  Council  and  Commission,  21  September  2005, 

ECLI:EU:T:2005:332, 225. 

157  Joined  Cases  C-402/05  P  and  C-415/05  P  Kadi  v  Council  and  Commission 

EU:C:2008:461 (Kadi I) 326. 

158  Ibid 353 
159  Ibid 371. 
160 Commission  Regulation  (EC)  1190/2008  28  November  2008  amending  Council 

Regulation (EC) No 881/2002. 

161  Case T-85/09 Kadi v Commission ECLI:EU:T:2010:418. 

 
                                                 
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reasons for Kadi's listing had not been disclosed to him and so his right to 
defence and effective judicial review and to property were still violated. Even 
though the Sanctions Committee delisted Mr. Kadi on 5 October 2010, the 
European  Committee,  the  Council  of  the  European  Union  and  the  UK 
appealed. Finally, the CJEU hold on 18 July 2013 that the improvement of the 
UN Sanctions Committee procedure was not enough to change his holding 
in Kadi I.162  

Very briefly, according to the TLCC, the smaller law creators' circle should 
have  invoked  either  an  ultra  vires  competence  of  the  larger  law  creators' 
circle, stating that the UN Security Council (to put it delicately) overstated 
its competence. Alternatively, it should have considered the resolution faulty 
because UN human rights had been violated (which would have necessarily 
implied—admittedly  difficult—arguments  for  the  application  of  human 
rights, in this case, effective judicial protection, at UN level).163 This is really 
just a superficial indication of what the TLCC implies in contrast to the grand 
old theories. However, I hope that the direction in which an application of 
the TLCC goes has been made visible and understandable. 

IV. RESUMÉ 

In this paper, I have argued that the TLCC provides a theoretical foundation 
for  finding  a  decisive  source  in  a  norm  conflict  situation.  It  is,  however, 
important  to  emphasize  that  the  TLCC  does  not  offer  an  absolute  and 
invariable solution which fits any norm conflict arising between overlapping 

162  C-595/10 P Commission and others v Kadi EU:C:2013:518, 66. 
163  C.f. for such an argument (albeit without TLCC as a basis) Martin Scheinin, 'Is the 
ECJ Ruling in Kadi Incompatible with International Law?', (2009) 28 (1) Yearbook 
of European Law 637-653. Gráinne De Búrca, 'The ECJ and the International Legal 
Order: A Re-Evaluation' in Gráinne de Búrca / Joseph H.H. Weiler (eds), The Worlds 
of European Constitutionalism (2012) 140. Andrea Bianchi, 'Assessing the Effectiveness 
of the UN Security Council's Anti-terrorism Measures: The Quest for Legitimacy 
and  Cohesion'  17  (207)  European  Journal  of  International  Law  881–919.  Juliane 
Kokott and Christoph Sobotta, 'The Kadi Case – Constitutional Core Values and 
International  Law  –  Finding  the  Balance?'  (2012)  23(4)  European  Journal  of 
International  Law,  1015-1024  arguing  that  the  Court  indicated  a  possible  opening 
towards the precedence of Security Counci measures if human rights enjoy sufficient 
safeguards. 

                                                 
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99 

international, EU, and national legal orders. This is a sharp contrast to grand 
old theories such as dualism and monism, which are considered unable to face 
major  recent  developments  of  international,  EU,  and  national  legal  orders. 
While  also  the  predominant  stream  of  global  legal  pluralism  is  restricted 
when  answering  the  question  behind  this  article  as  it  does  not  offer  a 
satisfactory prescriptive account, global constitutionalism suffers from major 
shortcomings too. Global Constitutionalism presumes too many substantial 
values  for  the  envisaged  common  normative  denominator  in  order  to  be  a 
helpful concept for the relationship between international, EU and national 
law. While global constitutionalism cannot carry the 'burden of universality', 
with  constitutional  pluralism  we  likely  end  in  a  'constitutional  stalemate'. 
The TLCC aims to re-conceptualize the current debates that are based on 
monism,  dualism,  pluralism,  and  constitutionalism.  Thereby  I  also  aim  at 
avoiding  the  pitfalls  of  global  legal  pluralism  and  global  constitutionalism 
concerning  their  appropriateness  for  norm  conflict  solution  between 
international,  EU,  and  national  legal  orders.  The  goal  is  to  answer  the 
question  as  to  whether  it  is  within  the  competence  of  national  law  to 
determine  the  effect  and  validity  of  international  or  EU  law  within  the 
domestic  (constitutional)  legal  order  and  the  international  within  the  EU 
legal order or not. 

In  a  nutshell,  a  law  creators'  circle  is  defined  as  a  circle  of  two  or  more 
individuals, which originates in the creation of one single binding consensus. 
The TLCC is based on pre-legal assumptions, which are the principles pacta 
sunt servanda and pacta tertiis. According to these pre-legal principles, TLCC 
is fundamental for all agreed consensuses. If a legal rule has been created by a 
consensus, unilateral abrogation is no longer possible. The rule of the larger 
law creators' circle always prevails over the rule of the smaller circle (A and B), 
if—and this is important—all members of the smaller circle are also members 
of the larger circle. In other words, the smaller circle is absorbed by the larger 
circle. 

What I have outlined so far might be disappointing, given the grand question 
I dared to ask in the title of this article. However, I am convinced that this 
complex and enormously important question as to how we can know who has 
the final say – international, EU or national law? – cannot be answered in an 
easy  and  universally  uniform  way.  The  vast  array  of  massively  diverging 

 
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theories and doctrines on the table are proof of that. Yet, I believe that it is 
important  at  least  to  attempt  a  sort  of  reconciliation  between  them.  The 
TLCC  is  exactly  that,  with  the  focus  on  a  structural  analysis.  I  hope  I 
succeeded  at  least  in  awakening  the  reader's  curiosity  pending  the 
completion of the next necessary step for the TLCC, i.e. providing concrete 
answers  for  the  current  relationship  of  International,  EU  or  national  law. 
This  forthcoming  work  includes  a  detailed  analysis  of  the  TLCC  and  the 
validity  and  effect  of  sources  of  international  law  in  the  EU  legal  order. 
Moreover, I will aim at expanding the application of the TLCC on the EU 
competence regime in order to shed some light on questions of constitutional 
identity and final supremacy.

THE PRELIMINARY REFERENCE DANCE BETWEEN THE CJEU AND 
DUTCH COURTS IN THE FIELD OF MIGRATION 

Jasper Krommendijk*

This article examines the relationship between national courts and the Court of Justice 
of  the  European  Union  (CJEU)  based  on  a  legal-empirical  research  consisting  of 
interviews and a legal analysis of judgments. It empirically tests which factors shape 
(i)  Dutch  national  courts'  motivations  to  refer  a  case  to  the  CJEU,  (ii)  how  the 
CJEU's  preliminary  rulings  are  received  and  implemented  by  national  courts,  and 
(iii) the extent to which the reception of the CJEU's preliminary ruling influences the 
national  courts'  future  decision  to  refer. This  argument  is  presented  through  a  case 
study in the field of migration law in the Netherlands (2013-2016). This article shows 
that  earlier  theories  about  judicial  empowerment  and  bureaucratic  politics, 
emphasising  politico-strategic  reasons  for  (non)referral,  have  a  limited  explanatory 

*  Assistant  Professor  of  EU  Law,  Radboud  University  Nijmegen.  This  article  forms 
part of the research project 'It takes two to tango. The preliminary reference dance 
between the Court of Justice of the European Union and national courts' (2017-2021) 
funded with a VENI-grant by the Netherlands Organisation for Scientific Research 
(NWO).  Earlier  versions  of  this  paper  were  presented  at  the  UACES  conference 
(Krakow, 5-6 September 2017); the Empirical Legal Studies Workshop (The Hague, 
25 October 2017), the European Journal of Legal Studies 10th anniversary conference 
at  EUI  (Florence,  16  November  2017)  and  the  CMR  Wine  &  Discussing  meeting 
(Nijmegen, 12 December 2017). This article also borrows from earlier publications in 
Dutch. Jasper Krommendijk, 'De hoogste Nederlandse bestuursrechters en het Hof 
van Justitie: geboren danspartners? Het hoe en waarom van verwijzen' [The highest 
Dutch administrative courts and the CJEU; natural born dance partners?  The how 
and why of reffering], Nederlands Tijdschrift voor Bestuursrecht (2017); Luxemburg 
heeft gesproken; Wat nu? De antwoorden van het HvJ door de ogen van de hoogste 
Nederlandse bestuursrechters [Luxembourg has spoken; what now? The answers of 
the  CJEU  from  the  perspective  of  the  highest  Dutch  administrative  courts] 
Nederlands Tijdschrift voor Bestuursrecht (2018); De lagere rechter aan banden. Is er nog 
ruimte voor de lagere rechter om te verwijzen naar het HvJ? [The lower court judge 
restricted. Is there still room for the lower court judge to refer to the CJEU?] SEW 
(2018). The author would like to thank the participants at these conferences, as well 
as  the  two  anonymous  peer  reviewers,  for  their  useful  comments  and  in  particular 
Elaine Mak, Mira Scholten, Anna Wallerman, Dan Kelemen and Möritz Baumgartel. 

 
                                                 
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value in the context of migration. It is so despite the expectation that strategic reasons 
are particularly applicable in a highly Europeanised, judicialised and politicised field 
such as migration law. Judges primarily operate pragmatically when deciding to refer 
(or  not)  and  when  applying  the  requested  CJEU  judgments.  Even  though  several 
national judges expressed criticism about the CJEU and some of its judgments, this 
has not affected them to such an extent that they felt discouraged from referring future 
cases or were reluctant to follow-up on CJEU judgments. 

Keywords:  preliminary  ruling  procedure;  judicial  dialogue;  national  courts; 
motives to refer; judicial empowerment; follow-up to CJEU judgments 

TABLE OF CONTENTS 
I. INTRODUCTION ........................................................................................... 103 
II. RESEARCH DESIGN ................................................................................... 106 
1. Literature Review .............................................................................................. 106 
A. Politico-strategic Considerations to (not) Refer .............................. 107 
B. Non-strategic Reasons to (not) Refer ............................................... 109 
C. Follow-up ............................................................................................... 112 
D. Feedback Loops................................................................................... 114 

2. References in Migration Law in the Netherlands (2013-2016) as a Case Study

 .............................................................................................................................. 114 
3. Research Design and Methodology ..................................................................... 117 
A. Motives to Refer .................................................................................. 120 
B. Follow-up ............................................................................................... 121 
C. Feedback Loops .................................................................................... 121 
III. NATIONAL COURT'S DECISION TO REFER ............................................ 122 
1. Politico-strategic Reasons .................................................................................... 122 
A. Judicial Empowerment: Protection vis-à-vis the Legislator ............ 122 
B. Leapfrog: Bureaucratic Struggles among Courts ............................... 124 
2. Non-strategic Reasons ........................................................................................ 129 
A. Compliance Pull/ Legal Formalism ..................................................... 131 
B. Pragmatism ............................................................................................ 133 
C. Personal/ Psychological Factors ......................................................... 136 
D. Institutional ......................................................................................... 138 
E. The Role of the Parties ........................................................................ 138 
IV. THE NATIONAL COURT'S FOLLOW-UP .................................................. 142 

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103 

1. Judges' Satisfaction with the Usefulness of CJEU Judgments ........................ 142 
2. Unclear and Problematic CJEU judgments ..................................................... 144 
3. Judges' (Dis)Satisfaction with their Interaction with the CJEU .................. 146 
4. The Referring Court's Follow-up ..................................................................... 148 
V. FEEDBACK LOOPS? ...................................................................................... 149 
VI. CONCLUSION ............................................................................................. 151 

I. INTRODUCTION 

The EU has had a tremendous impact on national law and politics. One of the 
most  important  drivers  of  the  European  integration  project  has  been  the 
Court of Justice of the European Union (CJEU). The CJEU has been able to 
have such an impact only as a result of the cooperation of national courts and 
their references about the interpretation and the validity of EU law.1 There 
are,  however,  growing  indications  that  the  referral  procedure,  which  is  the 
'keystone' of the EU legal system,2 is not working optimally. National court 
judges seem to lack the necessary knowledge of EU law or they simply appear 
unwilling  to  refer.3  Prechal,  the  current  judge  from  the  Netherlands  at  the 
CJEU, for example held that 'the quality and capacity of the national courts 
to apply [EU] law and to do so correctly is a matter for serious concern. [...] 
national judges, even the 'younger' generation, are rather still struggling with 

1  Karen  J  Alter,  Establishing  the  supremacy  of  European  Law.  The  Making  of  an 
international  rule  of  law  in  Europe  (Oxford  University  Press  2001)  320;  George 
Tridimas,  Takis  Tridimas,  'National  courts  and  the  European  Court  of  Justice:  a 
public choice analysis of the preliminary reference procedure' (2004) International 
Review of Law and Economics 1215. 

2  The power of national courts to make a reference 'constitutes the very essence of the 
[Union] system of judicial protection'. Opinion 2/13 EU:C:2014:2454, para. 176; Case 
C-300/99 P Area Cova EU:C:2001:71, para. 54. 

3  Michal Bobek, 'Of feasibility and silent elephants: The legitimacy of the Court of 
Justice  through  the  eyes  of  national  courts'  in  Maurice  Adams  et  al  (eds),  Judging 
Europe's judges: the legitimacy of the European Court of Justice Examined (Hart 2013) 197, 
212-213;  'Wallis  report.  Report  on  the  role  of  the  national  judge  in  the  European 
judicial  system',  2007/2027(INI),  4  June  2008,  http://www.europarl.europa.eu/ 
sides/getDoc.do?pubRef=-//EP//TEXT+REPORT+A6-2008-
0224+0+DOC+XML+V0//EN, last accessed 31 July 2018. 

 
                                                 
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[EU]  law  than  smoothly  applying  it'.4  The  actual  implementation  of  the 
consequent CJEU rulings is also far from ideal, because judgments sometimes 
only contain a limited number of arguments or lack a clear answer.5 Hence, 
many  important  principles  developed  by  the  CJEU  have  simply  remained 
unimplemented.6 In addition, several constitutional and supreme courts have 
openly rebelled against or showed their criticism about the CJEU. The recent 
years were marked by some high-profile cases, including the Danish Ajos case, 
the Italian Taricco saga as well as the German Gauweiler episode, that brought 
some of these problematic features of the procedure to the surface.7 

The  question  is  whether  these  often  anecdotal  allegations  about  the 
improper  functioning  of  the  preliminary  reference  procedure  are  real.  Are 
these three high profile cases merely the tip of the iceberg or the exceptions 
that prove the rule that the preliminary ruling procedure is generally working 
well? In other words, is the surge in integration-sceptical national judgments 
representative of the relationship between national courts and the CJEU or 
is  there  a  silent  majority  of  integration-friendly  courts?  If  the  procedure 
indeed  functions  sub-optimally  this  is  crucial  to  know.  Certainly,  it  would 
mean that the effectiveness of EU law could be affected if these shortcomings 

4  Sacha  Prechal,  'National  courts  in  EU  judicial  structures'  (2006)  25  Yearbook  of 

European Law 429, 432-433. 

5  Anthony Arnull, 'Judicial dialogue in the European Union', in Julie Dickson, Pavlos 
Eleftheriadis (eds), Philosophical foundations of EU law (OUP 2012) 109, 129; Marc de 
Werd,  'Dynamics  at  play  in  the  EU  preliminary  ruling  procedure'  22  Maastricht 
Journal  of  European  and  Comparative  law  (2015)  149,  152;  Eleanor  Sharpston, 
'Making  the  Court  of  Justice  of  the  European  Union  more  productive'  (2014)  21 
Maastricht Journal of European and Comparative law 763. 

6  Gareth  Davies,  'Activism  relocated.  The  self-restraint  of  the  European  Court  of 
Justice  in  its  national  context'  (2012)  19  Journal  of  European  Public  Policy  76; 
Thomas  de  la  Mare,  Catherine  Donnelly,  'Preliminary  Rulings  and  EU  Legal 
Integration:  Evolution  and  Stasis'  in  Paul  Craig,  Grianne  de  Búrca  (eds),  The 
Evolution  of  EU  Law  (OUP  2011)  363;  Takis  Tridimas,  'Constitutional  review  of 
Member  State  action:  the  virtues  and  vices  of  an  incomplete  jurisdiction'  (2011)  9 
International Journal of Constitutional Law 737. 

7  Case C-441/14 Dansk Industri EU:C:2016:278; Case C-105/14 Taricco EU:C:2015:555; 
Case C-62/14 Gauweiler EU:C:2015:400; Oliver Garner, 'The borders of European 
integration on trial in the Member States: Dansk Industri, Miller, and Taricco' (2017) 
European Journal of Legal Studies 1.  

                                                 
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The Preliminary Reference Dance 

105 

were not addressed. When national courts are frequently confronted with a 
deficient  'dialogue'8  or  unsatisfactory  answers  from  the  CJEU,  this  might 
discourage them to refer in future. Why would a judge refer when he or she 
considers the interaction with the CJEU, in the words of a Spanish judge, 'a 
monologue'?9  The  President  of  the  Danish  Supreme  Court  pointed  to 
another  dysfunctional  element  in  the  relationship  between  the  European 
Court  of  Justice  and  the  national  courts::  'If  the  interpretation  of  the 
European Court of Justice is taking national courts by surprise, one may fear 
a growing unwillingness of national courts and parties to a legal conflict to 
present matters before the Court of Justice'.10 Omissions to refer could mean 
that breaches of EU law remain unaddressed. This could in turn have severe 
implications for the judicial protection of individuals, and most certainly for 
individuals who are in vulnerable positions such as asylum seekers.11 This is 
not  to  say,  however,  that  more  references  are  necessarily  a  good  thing. 
Indeed, the average time taken by the CJEU to deal with references could 
also  have  negative  consequences  for  the  parties  and  justice  objectives  in 
general. 

Given  the  identified  problems,  it  is  crucial  to  understand,  firstly,  why  and 
how national courts use the preliminary ruling procedure and engage with the 
CJEU. More specifically, what are judges' (individual) motives to refer or not 
to  refer  (section  III)?  Secondly,  how  are  the  requested  CJEU's  rulings 
received and implemented by national courts (section IV)? Answers to these 
questions, which are also depicted in figure 1, enable the third question to be 

8  The  author  deliberately  aims  to  avoid  the  rather  normative  term  'dialogue'  and 
prefers using the more neutral term 'interaction'. As will be outlined in section IV.3, 
judges often do not experience their interaction with the CJEU as being a dialogue. 
9  Mario García, 'Cautious Openness: the Spanish Constitutional Court's approach to 
law',  European  Law  Blog,  7  June  2017, 

in  recent  national  case 

EU 
https://europeanlawblog.eu/2017/06/07/cautious-openness-the-spanish-
constitutional-courts-approach-to-eu-law-in-recent-national-case-law/, 
accessed 31 July 2018.  

last 

law 

10  Ulla  Neergaard,  Karsten  E.  Sørensen,  'Activist  infighting  among  courts  and 
breakdown  of  mutual  trust?  The  Danish  Supreme  Court,  the  CJEU,  and  the  Ajos 
case' (2017) Yearbook of European Law 275, 312. 

11  Takis Tridimas, 'Knocking on heaven's door: Fragmentation, efficiency and defiance 
in the preliminary reference procedure' (2003) 40 Common Market Law Review 9. 

 
                                                 
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addressed.  This  third  question  relates  to  whether  there  is  a  feedback 
relationship between the national judges' perception of their interaction with 
the CJEU and the national court judges' willingness to refer cases in future 
(section IV). This article answers these questions on the basis of a case study 
on the practice of referral in the field of migration in the Netherlands (see 
section II.2 for a justification of this selection). These questions are not only 
relevant from a practical point of view, but also from an academic perspective 
since  so  far  they  have  not  received  much  attention  in  the  literature  (see 
section II.1). 

The results of this research suggest that there is no need to worry about the 
functioning  of  the  preliminary  ruling  procedure.  The  main  reason  for  this 
optimistic  conclusion  is  that  judges  primarily  operate  'pragmatically'  when 
deciding to refer (or not) and when applying the requested CJEU judgments. 
Even  though  several  judges  expressed  criticism  as  to  the  CJEU  and  some 
CJEU judgments, this has not affected them to such an extent that they were 
reluctant to follow-up on CJEU judgments or felt discouraged from referring 
future  cases.  Another  important  contribution  of  this  article  is  that  it  casts 
doubt  upon  the  explanatory  power  of  theoretical  accounts  that  portray 
national courts as strategic actors that primarily refer for 'political' strategic 
reasons.  Above  all,  judges  consider  pragmatic  reasons,  including  practical 
considerations related to the consequences of referring in terms of delays or 
the  importance  of  the  issue  at  stake.  Before  turning  to  these  findings,  the 
article  firstly  gives  a  literature  review,  a  justification  of  the  selection  of 
migration in the Netherlands as case study and an outline of the methodology 
(section II.3). 

II. RESEARCH DESIGN 

1. Literature Review 

With respect to the first question, the motives to refer, the literature to date 
has primarily consisted of quantitative studies using econometric models. In 
addition, those studies primarily tested structural factors at the Member State 
level in order to explain why courts in some Member States refer more than 
courts in other Member States. Such factors include the level of GDP, the 
willingness to litigate, support for European integration, presence of judicial 

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review and the monist or dualist nature of the legal system.12 Despite ample 
research,  these  findings  on  their  own  are  not  wholly  satisfactory,  since 
different and sometimes conflicting factors have been identified and because 
differences  within  Member  States  and  across  time  have  often  been 
overlooked.13 Rather than examining these aggregate-level factors, this article 
looks into the motives of individual judges as a way to fill the gaps in earlier 
research.  In  doing  so,  it  aims  to  contribute  to  a  growing  literature  on  the 
factors and motives shaping the willingness of courts and judges to refer.14 

One could basically distinguish two types of theoretical perspectives on the 
motives  of  judges  (not)  to  refer:  politico-strategic  reasons  and  other  non-
strategic reasons, which are operationalised in Tables 1 and 2. 

A. Politico-strategic Considerations to (not) Refer 

There are three dominant perspectives in the Europeanisation literature on 
national courts' motives to refer. Firstly, based on neo-functionalist theories 
on European integration, the judicial empowerment hypothesis posits that 
national courts refer to compel the government to change its laws when they 

12  Stacy  A.  Nyikos, 

'The  preliminary 

reference  process.  National  court 
implementation, changing opportunity structures and litigant desistment' (2003) 4 
European Union Politics 397; Marlene Wind, Dorte S. Martinsen, Gabriel P. Rotger, 
'The uneven legal push for Europe: Questioning variation when national courts go to 
Europe' (2009) 10 European Union Politics 63. 

13  For  a  good  discussion  of  these  differences,  see  Arthur  Dyevre,  Nicolas  Lampach, 
'The Choice for Europe: Judicial Behaviour and Legal Integration in the European 
last 
Union'  (2017)  https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2926496, 
accessed 31 July 2018, 3-4. 

14  Such  individual  motives  have  not  received  much  attention  (yet).  There  have  been 
studies on Poland, Denmark and Sweden and (recently) Italy, Germany and France. 
See for example, Marlene Wind, 'The Nordics, the EU and the reluctance towards 
supranational  judicial  review'  (2010)  48  Journal  of  Common  Market  Studies  1039; 
Urszula Jaremba, 'Polish civil judiciary vis-à-vis the preliminary ruling procedure: in 
search of a mid-range theory' in Bruno de Witte et al (eds),  National courts and EU 
law.  New  issues,  theories  and  methods  (Edward  Elgar  2016)  49;  Tommaso  Pavone, 
'Revisiting judicial empowerment in the European Union: Limits of empowerment, 
logics of resistance' (2018) Journal of Law and Courts, pages yet unknown. 

 
                                                 
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are  of  the  opinion  that  a  national  measure  violates  EU  law.15  Referring  is 
hence  used  as  a  'sword'  vis-à-vis  the  legislator  or  executive.  Asking  for  a 
preliminary  ruling  would  increase  the  chance  of  government  compliance.16 
Secondly,  based  on  neo-realist  or  intergovernmentalist  theories,  the 
sustained resistance view, takes the opposite stance and argues that national 
courts have a strong incentive to 'shield' national legislation from the CJEU 
by withholding references because of national interest considerations. They 
prefer to 'shield' national policy and legislation from undesirable influence of 
the  CJEU,  especially  in  politically  sensitive  cases.17  This  preference  could 
stem  from  the  national  court's  loyalty  towards  the  executive,  its  resistance 
against the dynamic interpretation by the CJEU, the pressure from the public 
or  other  domestic  political  considerations.18  Thirdly,  the  bureaucratic 
politics model developed by Alter implies that EU law is used in bureaucratic 
struggles between different levels within the judiciary.19 This model explains 
why  different  national  courts  have  their  own  (different)  incentives  to  refer 
and  why  there  is  divergence  in  the  number  of  references  among  lower  and 
higher  courts  within  and  between  Member  States.  It  also  points  out  that 
lower  courts  use  the  preliminary  reference  procedure  to  'leapfrog'  the 
national  judicial  hierarchy  in  order  to  seek  support  from  the  CJEU  as 
protection  against  reversal  of  their  decisions  by  a  higher  court  or  the 
government.20 This theory spells out why most of the references are made by 
lower  courts  in  the  majority  of  EU  Member  States,  albeit  not  in  the 

15  Joseph  H.H.  Weiler,  'A  Quiet  revolution:  The  European  Court  of  Justice  and  its 
interlocutors' (1994) 26 Comparative Political Studies 510, 523; Jonathan Golub, 'The 
politics  of  judicial  discretion:  Rethinking  the  interaction  between  national  courts 
and  the  European  Court  of  Justice'  (1996)  19  West  European  Politics  360,  379; 
Davies (n 6) 85; Alter (n 1) 219 and 228. 

16  Andreas J Obermaier, 'The national judiciary. Sword of European Court of Justice 
rulings: the example of the Kohll/Decker jurisprudence' (2008) European Law Journal 
735; Tridimas & Tridimas (n 1) 1215. 
17  Golub (n 15) 375-379; Wind et al (n 12) 63. 
18  Wind et al (n 12) 75-76; Wind (n 14) 1053; Golub (n 15) 377; Karen J. Alter, 'Explaining 
national court acceptance of European Court jurisprudence: A critical evaluation of 
theories of legal integration', in: Anne-Marie Slaughter, Alec Stone-Sweet, Jospeph 
H. Weiler (ed.), The European Courts and National Courts (Hart 1998) 225, 236. 

19  Alter (n 18) 241-247. 
20  Alter (n 18) 242. 

                                                 
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The Preliminary Reference Dance 

109 

Netherlands.21  Note,  however,  that  recent  studies  suggest  that  the  highest 
courts in other EU Member States have in recent years 'reconquered' control 
from the lowest courts over the application of EU law and references to the 
CJEU.22 

Table 1: operationalisation of strategic reasons to refer 

Motivations 
(not) to refer 

Political/ strategic 
considerations 
(section III.1) 

Theory 

Sword 

Shield 

Leapfrog 

Proxy 
Strike down national law or policy; 
considerable financial consequences 
Protect national legislation from EU 
law 
Challenge (another) higher court 

B. Non-strategic Reasons to (not) Refer 

These three politico-strategic perspectives have for a long time dominated 
the research on the interaction between national courts and the CJEU. The 
recent  literature,  however,  have  not  found  much  support  for  the  theories 
construing courts as politico-strategic actors. Several authors highlighted the 
increasing reluctance of lower courts to refer, coupled with a greater usage of 
the reference procedure by the highest courts in recent years across the EU. 
In  doing  so,  they  showed  that  earlier  accounts  which  emphasise  the 
important share of lower courts' references in the case docket of the CJEU 
are  no  longer  telling  the  full  story.23  Instead  of  primarily  strategic  reasons, 

21  In  the  Netherlands  66%  of  the  references  have  been  made  by  the  highest  courts 
while in 11 Member States, including Belgium, France, Spain and the UK, more than 
70% of the references have been made by lower courts. Chantal Mak, Elaine Mak, 
Vanessa Mak, 'De verwijzende rechter. Rechtspolitieke verandering via prejudiciële 
vragen van lagere rechters aan het Europese Hof van Justitie' [The referring judge. 
Legal political change via preliminary references of lower courts to the CJEU] (2017) 
Nederlands Juristenblad 1724. 

22  Since the situation in most EU Member States currently reflects the practice in the 
Netherlands, this point does not  seem very relevant to consider in relation to the 
country selection. Daniel R. Kelemen, Tommaso Pavone, 'The European Court of 
Justice's evolving relationship with national judiciaries' (2017), unpublished. 

23  Francisco P. Coutinho, 'European Union law in Portuguese courts: An appraisal of 
the  first  twenty-five  years  after  accession'  (2017)  Yearbook  of  Eurpean  Law  358; 
Arthur Dyevre, Angelina Atanasova, Monika Glavina, 'Who asks most? Institutional 

 
                                                 
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Pavone concluded, based on a thorough empirical research on Italy, Germany 
and France, that (a lack of) references can be explained by path-dependent, 
every-day practices within national courts.24 

While the literature has focused on strategic reasons for courts to refer, it has 
not yet formulated hypotheses about the possible non-strategic reasons for 
the courts to do so. Against this backgroung, five mechanisms can be distilled 
from  existing  theoretical  and  empirical  accounts.  Firstly,  legal-formalist  or 
'compliance pull' motives based on the 'power of the law'.25 National courts 
refer because they feel responsible for a correct application of EU law or, in 
the case of the highest court, they consider themselves obliged to refer.26 The 
highest  courts  are  required  to  refer  when  they  have  doubts  about  the 
interpretation  and  validity  of  EU  law  unless  it  would  'in  no  way  affect  the 
outcome of the case'.27 This being said, there are two other exceptions for the 
highest courts to refer, which are commonly referred to as Cilfit-exceptions: 
no reference is necessary when the CJEU has 'already dealt with the point of 
law in question' (acte éclairé) or when 'the correct application of [EU] law may 
be so obvious as to leave no scope for any reasonable doubt as to the manner 
in  which  the  question  raised  is  to  be  resolved'  (acte  clair).28  Secondly, 
pragmatic considerations other than strict legal obligations to refer also play 
an important role.29 This includes, for example, case specific reasons which 
relate  to  the  importance  of  the  questions  concerned  or  efficiency  reasons 

incentives  and  referral  activity 
(2017), 
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3051659,  last  accessed  31  July 
2018; Kelemen & Pavone (n 22). 

in  European  Union 

legal  order' 

24  Pavone  (n  14);  Compare  also  with  Jaremba  (n  14)  49;  Denise  C.  Hübner,  'The 
decentralized  enforcement  of  European  law:  national  court  decisions  on  EU 
directives  with  and  without  preliminary  reference  submissions'  (2017)  Journal  of 
European Public Policy 1. 

25  Weiler (n 15) 520; see recently Hübner (n 24). 
26  Alter (n 1) 230. 
27  Case 283/81 Cilfit EU:C:1982:335, para. 10. 
28  Ibid, para.14 and 16. 
29  See more generally about 'pragmatic adjudication' Richard Posner, How judges think 
(CUP  2008);  Urszula  Jaremba,  Polish  Civil  Judges  as  European  Union  Law  Judges: 
Knowledge,  Experiences  and  Attitudes  (2012),  https://repub.eur.nl/pub/37318/,  last 
accessed 31 July 2018, 352.  

                                                 
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The Preliminary Reference Dance 

111 

concerning the consequences of referring in terms of the delay in the specific 
case or other cases involving the same EU law issue.30 Thirdly, personal and 
psychological factors related to the individual judge have been mentioned as 
well. This includes, for example, the limited knowledge about EU law and/or 
the preliminary ruling procedure as a reason for non-referral.31 It has also been 
noted that some judges might be reluctant to refer, because they are afraid 
that  they  ask  a  wrong  question  and  that  the  CJEU  declares  their  question 
inadmissible.32  Fourthly,  institutional  and  organisational  factors  related  to 
the institutional dynamics of a particular court have also been put forward. 
These  factors  include,  for  example,  the  need  to  meet  'production  targets' 
which discourages  references to  the CJEU.33 Fifthly, the literature has also 
noted  that  the  parties  and  their  requests  to  refer  can  influence  the  courts 
willingness to refer.34 

Table 2: operationalisation of non-strategic reasons to refer 

Motivations 
(not) to refer  Theory 

Non-strategic 
considerations 
(section III.2) 

Compliance 
pull/ 
legal 
formalism 

Proxy 
The need to comply with the 
obligation to refer/ correct application 
of the Cilfit doctrine 

30  Judges primarily refer because this is simply necessary for them to solve the national 
dispute efficiently. If they are not able to interpret EU law on their own, the CJEU 
might  provide  the  required  clarity.  Hans-W.  Micklitz,  The  politics  of  judicial 
cooperation in the EU. Sunday trading, equal treatment and good faith  (CUP 2005) 437; 
Jaremba (n 14) 67. 

31  Jaremba  (n  29);  Tobias  Nowak  et  al,  National  judges  as  European  Union  judges: 
Knowledge, experiences and attitudes of lower court judges in Germany and the Netherlands 
(Eleven 2011) 49. 

32  Jaremba (n 29) 229-230; Hanna Sevenster, Corinna Wissels, 'Laveren tussen Ferreira 
en Van Dijk' [Plying between Ferreira en Van Dijk] in M. Bosma et al (eds), Graag nog 
even  bespreken.  Liber  amirocum  Henk  Lubberdink  (Raad  van  State  2016)  83,  90;  Kees 
Groenendijk,  'Waarom  rechters  niet  naar  Luxemburg  gaan:  politieke  structuur  of 
rechtscultuur?'  [Why  judges  do  not  go  to  Luxembourg:  political  structure or  legal 
culture?] in R. Baas et al (eds), Rechtspleging en rechtsbescherming. Liber amicorum voor 
prof. dr. Leny E. de Groot-van Leeuwen (Kluwer 2015) 302. 

33  Groenendijk (n 33); Nowak et al (n 31) 54. 
34  Wind (n 14) 1053; Wind et al (n 12) 283. 

 
                                                 
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Need of legal clarity; answer perceived 
necessary to resolve the case 
Reasonable reading of Cilfit 
Natural reluctance (e.g. decide 
themselves) 
Importance of the question 
Consequences of referring for the 
parties 
Efficiency reasons (delay in case, and 
other cases) 
Resources necessary to write question, 
time 
Position in the career 
Background/ expertise 
Knowledge of EU law procedure 
Self-perception: e.g. lower courts as 
fact finders 
Fear to ask (wrong) questions 
Satisfaction of writing a reference/ 
contributing to EU law 
Awareness (e.g. specialised EU law 
committees in courts) 
Case management (backlog of cases) 
Parties requested referral 

Pragmatism 

Personal/ 
psychological 

Institutional 

Request of the 
parties 

So far, strategic and non-strategic reasons have not been tested in the field of 
migration. The findings presented in this article further corroborate recent 
studies,  such  as  Pavone's,  and  challenge  some  major  assumptions  of  the 
dominant  theoretical  approaches,  namely  that  politico-strategic  reasons 
alone do not explain the motivation of national judges to refer. In addition, it 
shows  that  the  influence  of  parties  on  national  judges'  decision  to  refer  is 
rather limited. 

C. Follow-up 

There is not much research on the second question dealing with the follow-
up to CJEU judgments, except for some older studies finding high rates of 

 
 
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The Preliminary Reference Dance 

113 

implementation.35 Bobek observed that 'very little or nothing at all is known 
[...] whether or not national courts are satisfied with the Court's decision(s) 
once  they  receive  them,  whether  they  consider  them  authoritative,  and 
whether the Court's case law is in fact followed'.36 There is an assumption that 
preliminary rulings of the CJEU are implemented by the requesting national 
courts, but there is little systematic evidence supporting that view.37 While 
some  older  studies  found  high  implementation  rates,38  others  noted  that 
implementation is not always achieved or straightforward.39 Other outcomes 
than  full  application  of  the  CJEU  judgment  include:  partial  application,  a 
reinterpretation of the facts so that the CJEU judgment does not apply, re-
referral to the CJEU and concealed or open non-compliance.40  

This  article  will  thus  fill  an  empirical  gap  and  provide  reflection  on  the 
current  discourse  which  tends  to  overemphasise  integration-sceptical 
national  judgments.41  It  shows  that  Dutch  judges  have  generally  adopted  a 
positive attitude towards the CJEU and its judgments. It will also be argued 

35  An implementation rate of 90% was found for the Netherlands in the period 1961-
1985.  Nyikos  likewise  found  an  'extremely  high'  rate  of  96%.  Joest  Korte  (ed), 
'Primus  inter  pares:  The  European  Court  and  national  courts.  The  follow-up  by 
national courts of preliminary rulings ex Art. 177 of the Treaty of Rome: A report on 
the situation in the Netherlands' (1990) EUI Law Working Paper; Nyikos (n 12) 410; 
see also Arjen W.H. Meij, Prejudiciële vragen van Nederlandse rechters en hun gevolgen 
[Preliminary  references  of  Dutch  judges  and  their  consequences]  (W.E.J.  Tjeenk 
Willink  1993);  G.  Wils,  Prejudiciële  vragen  van  Belgische  rechters  en  hun  gevolgen 
[Preliminary  references of Belgian judges and their consequences] (W.E.J. Tjeenk 
Willink 1993).  
36  Bobek (n 3) 197. 
37  Nyikos (n 12) 398. 
38  Korte found an implementation rate for Dutch references (1961-1985) of 90%. Korte 
(n 35). Nyikos also found an 'extremely high' implementation rate of 96%. Nyikos (n 
12) 410. 89% of the respondents in a 2007 survey found the CJEU judgment readily 
applicable. Wallis report (n 3) 23. 

39  Davies (n 6) 81 and 89; Alter (n 18) 233-234; See, for example, the way in which the 
Danish Supreme Court was unwilling to change its ruling after  Ajos.  Neergaard & 
Sørensen (n 10). 

40  Nyikos (n 12) 399-401. 
41  Andreas Hofmann, 'Resistance against the Court of Justice of the European Union' 

(2018) International Journal of Law in Context 258. 

 
                                                 
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that national judges' personal background and institutional position play an 
important role in their perception of the CJEU's case law. 

D. Feedback Loops 

Even  less  research  has  been  conducted  on  the  relationship  between  the 
motives of judges to (not) refer and their perception of the CJEU and CJEU 
judgments.  It  is  difficult  to  clearly  connect  the  idea  of  feedback  loops  to 
specific  theoretical  accounts  or  previous  empirical  studies.  The  notion  of 
feedback loops relates, however, to a certain extent to Mayoral's notion of 
'trust', which he defines as 'national judges' belief about whether the CJEU 
will follow an expected course of action under conditions of uncertainty'.42 
The limited (theoretical) attention warrants further work in this direction. It 
also  explains  the  more  inductive  and  explorative  approach  that  this  study 
takes with respect to this third question (see further section II.3.C). 

2. References in Migration Law in the Netherlands (2013-2016) as a Case Study 

Given the shaky empirical support for the theories which portray courts as 
strategic actors, it is best to select an area of case law where one would expect 
these theories to apply. The field of asylum, migration and integration, one 
of the most contested issues that the EU is confronted with nowadays, lends 
itself to 'test' those theories. This is so because the aforementioned area has 
been greatly Europeanised in a relatively short period of time. It is also highly 
judicialised and politicised because many EU Member States, including the 
Netherlands, have adopted restrictive policies in this area, often testing and 
sometimes  transcending  the  limits  of  EU  law.  It  is  not  only  the  legislator 
which  has  become  more  restrictive  in  this  field,  but  also  some  (highest) 
courts,  such  as  the  Dutch  Council  of  State.43  This  has  led  to  increasing 

42  Juan  A.  Mayoral,  'In  the  CJEU  judges  trust:  A  new  approach  in  the  judicial 

construction of Europe' (2017) Journal of Common Market Studies 551. 

43  The  Salah  Sheekh  judgment  of  the  ECtHR  as  an  illustration  of  the  restrictive 
approach of the Council of State. In this judgment, the ECtHR dismissed the Dutch 
government's plea of inadmissibility for non-exhaustion of domestic remedies even 
though the applicant had not lodged appeal with the Council. The ECtHR justified 
this  by  ruling  that  the  Council  'may  in  theory  have  been  capable  of  reversing  the 
decision of the Regional Court, in practice a further appeal would have had virtually 

                                                 
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litigation at both the national and European level, offering room for courts to 
challenge (or 'shield') national legislation or the restrictive approach of other 
courts.44  Courts  are  generally  reluctant  to  strike  down  democratically 
adopted rules, especially in such a controversial and politically sensitive field 
as  migration.  Referring  to  the  CJEU  could  give  national  courts  an 
authoritative cover to do so. 

In  addition,  the  Netherlands  is  also  a  suitable  Member  State  to  test  these 
theories. Dutch courts have been 'integration friendly', they generally ask a 
high  number  of  questions  and  are  eager  to  engage  with  EU  law.45  Dutch 
courts are also at the forefront in the field of migration. The Council of State 
was, for example, the first national court in the EU to ask questions about the 
Qualification  Directive  2004/83,  the  Family  Reunification  Directive 
2003/86, as well as the Directive 2003/109 on third-country nationals who are 
long-term residents.46  

Table 3: Overview relevant cases studied for the period 2013-2016 

References by the highest courts 
C-601/15, PPU, J.N. (ABRvS) 
C-133/15, Chavez-Vilchez (CRvB) 
C-153/14, K. and A. (ABRvS) 
C-579/13, P. and S. (CRvB) 
C-554/13, Zh. and O. (ABRvS) 
C-383/13 PPU, G. and R. (ABRvS) 

References by lower courts (Rb.) 
C-550/16, A. and S.  
C-331/16, K.  
C-18/16, K. 
C-63/15, Ghezelbash  
C-158/13, Rajaby  

no  prospect  of  success.'  ECtHR  nr.  1948/04  Salah  Sheekh,  CE:ECHR: 
2007:0111JUD000194804, para. 123. 

44  Möritz  Baumgärtel,  'Part  of  the  game':  government  strategies  against  European 
litigation  concerning  migrant  rights',  in  Tanja  Gammeltoft-Hansen  &  Thomas 
Aalberts (eds), The Changing Practices of International Law (Cambridge University 
Press 2018), forthcoming. 

45  Bobek (n 3) 213. 
46  Respectively C-465/07 Elgafaji EU:C:2009:94 (Council Directive 2004/83/EC of 29 
April 2004 on minimum standards for the qualification and status of third country 
nationals  or  stateless  persons  as  refugees  or  as  persons  who  otherwise  need 
international  protection  and  the  content  of  the  protection  granted  [2004]  OJ 
L304/12);  C-578/08  Chakroun  EU:C:2010:117  (Council  Directive  2003/86/EC  of  22 
September 2003 on the right to family reunification [2003] OJ L 251/12); C-502/10, 
Singh  EU:C:2012:636  (Council  Directive  2003/109/EC  of  25  November  2003 
concerning the status of third-country nationals who are long-term residents [2003] 
OJ L16/44). 

 
 
                                                 
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C-171/13, Demirci (CRvB) 
C-148/13-150/13, A., B., C. (ABRvS) 

For this article all referred cases and decisions not to refer in the four-year 
period  (2013-2016)  were  selected.  47  As  Table  3  shows,  thirteen  cases  have 
been referred to the CJEU in this period. Five references came from lower 
courts (rechtbank or Rb.) who are not obliged to refer on the basis of Article 
267  TFEU.48  Eight  cases  were  referred  by  the  two  highest  administrative 
courts which are active in this area: the Administrative Division of the Council 
of State (the Council of State  or ABRvS) and the Central Appeals Tribunal (the 
Tribunal  or  CRvB).  There  had  only  been  sixteen  references  in  the  thirteen 
years before (2000-2012), which illustrates the increasing Europeanisation in 
this  area.  The  Europeanisation  might  of  itself  also  be  a  factor  that  has 
contributed to the growing number of references. There are simply more EU 
(asylum and migration) rules, as well as more cross-border movements giving 
rise to more disputes and hence more case law of the CJEU. Lawyers have also 
become  more  specialised  in  EU  (migration)  law  and,  hence,  increasingly 
appeal  to  EU  law  and  request  a  reference  to  be  made.  There  is  also  a 
reinforcing effect in the sense that once the CJEU has ruled on an issue, this 
almost  unavoidably  leads  to  new  questions.  One  good  example  is  the 
Zambrano ruling which has caused courts to ask new questions regarding the 
rights of residence of third country nationals with minor children who are EU 
citizens.49  

This  article  will  not  engage  in  a  systematic  comparison  of  migration  with 
other  fields  of  law.  It  will,  nonetheless,  provide  some  reflections  on  the 

47  It  was  decided  to  focus  on  the  most  recent  references  that  reflect  the  current 
operation of the procedure and dynamic between courts. The analysis included only 
references before 31 December 2016 in order to be able to study most, albeit not all, 
CJEU  judgments  and  the  national  follow-up.  This  is  so  because  it  usually  takes  15 
months before the CJEU answers the reference and often at least half a year before 
the referring court decides the dispute. The limited period does not mean that older 
or  more  recent  cases  and  developments  are  excluded,  especially  when  they  were 
mentioned  during  interviews  or  in  the  literature,  but  simply  that  no  structured 
database search was conducted for this period. 

48  Unless  they  have  doubts  about  the  validity  of  EU  law.  Case  314/85  Foto-Frost 

EU:C:1987:452, paras. 15 and 16; E.g. NL:RBDHA:2016:265, para. 8.2. 

49  Case C-34/09 Zambrano EU:C:2011:124. 

 
 
 
                                                 
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specific nature of the legal field of migration in comparison with other fields 
based on some provisional findings from a broader 4.5 years research project 
on the interaction between the CJEU and Dutch, Irish and British courts.50 
These provisional findings suggest that the field of law is an important factor 
affecting especially the national judges' motives to refer.51 

3. Research Design and Methodology  

This  article  will  address  the  three  research  questions  presented  in  the 
introduction  on  the  basis  of  a  legal-empirical  research  combining  legal 
analysis  and  interviews  (see  figure  1).  A  doctrinal  legal  analysis  alone  is 
insufficient to answer the three questions. While previous studies primarily 
relied  on  interviews  and  or  surveys  with  judges,  this  article  combines 
interviews  with  a  comprehensive  and  structured  analysis  of  judgments  of 
both national courts and the CJEU.52 

50  In order to obtain a good insight in judicial motives, this project considers Member 
States  with  a  different  practice  of  referring  by  looking  at  the  relative  number  of 
references  per  1  million  inhabitants.  UK  courts  make  relatively  little  use  of  the 
preliminary  reference  procedure.  By  contrast,  Dutch  courts  ask  a  high  number  of 
questions and are  eager to engage with EU law. Ireland is somewhere in between. 
Complementary to this project, a PhD researcher (Jesse Claassen) is conducting a 
similar research project on Austria and Germany. 

51  The research on the Netherlands, found, for example, a greater willingness to refer 
to  the  CJEU  in  the  field  of  intellectual  property  or  criminal  cooperation  and 
European  arrest  warrants.  This  could  be  compared  with  the  idea  of  'hotspots'  of 
references of certain judges in particular fields of law. R.D. Kelemen & T. Pavone, 
'The  political  geography  of  European  legal  integration'  (2017)  unpublished;  see  also 
Dyevre et al (n 23). 

52  Wind (n 14); Pavone (n 14). 

 
 
 
 
 
 
 
                                                 
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Figure 1: Research design 

3 

Motivations 
national judge 

Interviews 

Ideas 
national judge 

National 
court's decision 
to refer 

1 

Legal analysis 

Requested 
CJEU ruling 

National court's 
follow-up 
judgment 

2 

Legal analysis: 
comparison of both 
judgments  

This article builds on an innovative dataset gathered through semi-structured 
interviews  with  sixteen  judges  and  court  clerks  involved  in  the  referred 
migration cases listed in Table 3, as well as cases that were not referred. The 
dataset also includes judges who have no experience in referring ensuring a 
representative  picture.53  Eleven  interviewees  work  at  the  two  highest 
administrative  courts  (ABRvS  and  CRvB).  Five  interviews  were  conducted 
with  asylum  judges  from  lower  courts  (Rb.).  Given  this  limited  number, 
findings with respect to lower courts should be interpreted with more care.54 
In order to protect the anonymity of interviewees, their names and identities 

53  In order to make this selection, an overview was made of all judges involved in the 
referred cases  as  well as  decisions not to refer. Two interviews  were conducted in 
2015, while all others took place between April and November 2017. Almost all judges 
and court clerks that were approached for an interview were willing to cooperate. 
Only six judges refused or where unable to meet. 

54  Interviews 14, 22, 39, 51, 83. 

 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
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The Preliminary Reference Dance 

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are  not  disclosed.55  Note  that  this  research  is  part  of  a  broader  research 
project for which, so far, 36 judges and court clerks have been interviewed.56 

There are clear limitations to interviews as a research instrument to identify 
motives.57 One problem is that asking judges about motives might encourage 
them  to  provide  ex  post  rationalisations  that  do  not  reflect  the  decision 
making at the time they decided the case. To mitigate this problem, a recent 
time period (2013-2016) was chosen.58 As a result, most interviewees were also 
generally  able  to  reflect  on  almost  all  cases  in  the  selected  time  period. 
Another  drawback  of  interview  method  is  that  interviewees  might  be 
tempted  to  give  socially  desirable  answers  and/or  conceal  their  real 
motivations.  Judges  might  also  be  reluctant  to  acknowledge  that  politico-
strategic reasons played a role in their decision to refer (or not) and conceal 
that they have engaged in such strategies. As it might conflict with their self-
perception or professional ethos of being an independent judge who decides 
on  the  basis  of  the  law.  Despite  the  secrecy  of  judicial  deliberations, 
interviewees were relatively open, seemed honest and were willing to discuss 
individual  cases.  To  alleviate  the  aforementioned  problems,  interviewees 
were, firstly, encouraged not to reflect on motives in general and in abstracto. 
Rather, they were asked to give concrete examples or probed to reflect on 
several  specific  judgments  that  were  identified  earlier  during  the  legal 
analysis. Secondly, the idea was to interview more than one judge involved in 
certain  (important)  cases.  Interviewees  were,  thirdly,  given  a  convincing 
guarantee  of  confidentiality.59  Fourthly, 
interview  data  were 

the 

55  A number between 0 and 100 was randomly selected for the interviews. Note that 
references  to  interview  numbers  is  omitted  when  specific  cases  are  discussed, 
because this would still make it possible to trace the identity of the interviewees on 
the basis of the published judgments. 

56  Jasper  Krommendijk,  'De  hoogste  Nederlandse  bestuursrechters  en  het  Hof  van 
Justitie:  geboren  danspartners?  Het  hoe  en  waarom  van  verwijzen'  [The  highest 
Dutch  administrative  courts  and  the  CJEU;  natural  born  dance  partners?  The  ho 
wand why of reffering], Nederlands Tijdschrift voor Bestuursrecht (2017) 305. 
'Asking  someone  to  identify  his  or  her  motive  is  one  of  the  worst  methods  of 
measuring  motives'.  Lee  Epstein,  Gary  King,  'The  rules  of  inference'  (2002)  69 
University of Chicago Law Review 1, 93. 

57 

58  Ibid (n 46). 
59  Ibid (n 55). 

 
                                                 
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complemented with the analysis of case law, extra-judicial writing of judges 
and  secondary  literature  to  triangulate  the  data  as  far  as  possible.  As 
mentioned  before,  the  triangulation  of  different  sources  illustrates  the 
methodological originality of the article. 

A. Motives to Refer 

To establish the motives of judges to refer, all national court decisions to refer 
and to not refer in the time period 2013-2016 were analysed on the basis of the 
following three questions (see '1' in figure 1): Which considerations played a 
role in decisions (not) to refer to the CJEU? What were the reasons (not) to 
refer in the particular cases? How have the Cilfit-exceptions been interpreted 
and applied?  

The national court decisions not to refer were found on the basis of a careful 
database  search  of  all  published  Dutch  judgments  with  the  search  terms 
'prejudiciële vragen' [preliminary questions], '267 VWEU' [267 TFEU] and 
'Cilfit'.60 The disadvantage of this approach is that there could still be some 
cases  in  which  a  reference  was  appropriate,  but  which  do  not  mention  the 
issue of referring at all. It seems that the highest courts have been more eager 
in recent years to carefully reason why a reference is not necessary when one 
of the parties requested a reference as a result of the case law of the ECtHR 
'silent' 
(see  section  III.2.E).To  alleviate  the  problem  of  discovering 
judgments,  two  other  strategies  were  used.  First  judgments  of  the  lower 
courts in cases that were eventually referred to the CJEU by the highest court 
were  consulted.  Second,  judgments  were  also  found  in  the  secondary 
literature.  

This  being  said,  an  analysis  of  judgments  is  not  enough  to  establish  the 
motives of judges to refer, especially because court judgments are often silent 
on  other  relevant  considerations  and  calculations  beyond  purely  legal 
(formalist) reasons. The analysis of judgments did not clarify why questions 
were raised in one case and not in another. Semi-structured interviews with 
judges  were  therefore  conducted.  The  three  open-ended  questions  set  out 
above were raised during the interview to give judges the freedom to come up 
with reasons out of their own motion without being directed too much. Only 

60  This search was conducted on rechtspraak.nl for the period 1-1-2013 t/m 31-12-2016. 

                                                 
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at a later stage of the interview the judges were asked to reflect on some, but 
certainly not all, motives and factors identified in the literature discussed in 
section II.1. Lower court judges were also asked about their reasons not to 
refer  the  cases  that  were  later  referred  by  the  highest  court.  In  addition, 
judges were confronted with criticism from the relevant literature about the 
lack  of  referral  in  these  cases.  Tables  4  and  5  in  section  III  provide  an 
overview of the considerations mentioned by the 16 migration judges during 
interviews.61 

B. Follow-up 

For  the  second  question,  the  national  court's  follow-up  judgment  was 
compared with the requested CJEU ruling to establish whether and how that 
court has applied the CJEU judgment (see '2' in figure 1). Secondary literature 
and commentaries were useful in conducting this analysis because they often 
contain criticism on the reasoning and approach of the CJEU and/or follow-
up by the referring court. 

judge' 

'ideas  national 

This legal analysis was complemented with interviews with judges involved in 
in  figure  1).  The  following 
these  cases  (see 
questionswere firstly asked in general in an open way, whereby judges were 
encouraged to discuss specific cases out of their own motion: Is the reasoning 
of the CJEU sufficiently clear? Can CJEU judgments be applied easily in the 
national  court  case  and  be  used  to  solve  the  dispute?  Are  there  cases  of 
incomplete follow-up, and why? Interviewees were subsequently questioned 
about specific CJEU rulings identified during the doctrinal analysis that were 
not mentioned by the interviewees themselves. 

C. Feedback Loops 

The  third  question  on  the  feedback  loops  (see  '3'  in  figure  1)  was  primarily 
answered on the basis of interviews during which judges were asked whether 
their  interaction  with  the  CJEU  and  its  answers  had  an  effect  on  their 

61  Note, however, that one should be careful in drawing conclusion from this table. It 
was often difficult to classify  whether an interviewee  argued in line with a certain 
reason or factor, also because an interviewee could partly (dis)agree. It was therefore 
also decided  not  to mention in  percentages how many judges considered a reason 
(ir)relevant. 

 
                                                 
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willingness  to  refer  cases  in  future.  In  addition,  judges  were  also  asked  to 
reflect on the question as to whether they take the expected answer of the 
CJEU into account when deciding to refer or not. 

III. NATIONAL COURT'S DECISION TO REFER 

This section takes the motivations of judges (not) to refer as identified in the 
literature.  As  will  be  shown  below,  politico-strategic  reasons  play  a  more 
limited role in the context of migration than one would expect based on  the 
literature.  Moreover,  the  results  also  do  not  support  the  expectation  that 
such reasons play an important role in the highly Europeanised, judicialised 
and politicised field of migration (section III.1). The study, in fact, shows that 
non-strategic  reasons  can  better  explain  the  judges'  decision  (not)  to  refer 
(section III.2). 

1. Politico-strategic Reasons 

Section II.1 outlined three dominant theoretical perspectives on the politico-
strategic  reasons  for  courts  to  refer:  judicial  empowerment  ('sword'), 
sustained resistance ('shield') and bureaucratic politics ('leapfrog'). Only a few 
'sword'  references  (section  II.1.A)  and  a  couple  more  'leapfrog'  references, 
especially from lower courts (section III.1.B), were found in this study. This 
research  did  not  find  any  support  for  the  second  theory  that  courts 
deliberately shield cases from the CJEU.62 

A. Judicial Empowerment: Protection vis-à-vis the Legislator 

The highest national courts have acted in line with the judicial empowerment 
hypothesis  in  a  few  instances.  Several  interviewees  acknowledged  this.  But 
almost all of them mentioned the same two references of the Council of State 
in the area of migration as examples, one of which (Chakroun) precedes the 
2013-2016  time  period.  Chakroun  dealt  with  a  Dutch  rule  stipulating  that 
family reunification could be refused to a sponsor who does not have a lasting 

62  Nonetheless, it could be argued that when national courts do not refer in order to 
shield the national legislator they would not raise the issue of referral, because this 
would  throw  light  on  their  'disloyalty',  at  least  from  an  EU  perspective.  For  a 
discussion of the strategy to alleviate this problem, see section II.3. 

                                                 
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and independent net income equal to at least 120% of the minimum wage in 
order to maintain himself and the members of his family.63 There was already 
quite a lot of criticism regarding the validity of this rule in the light of the 
Family Reunification Directive and the Council of State referred the case to 
the CJEU.64 Similar doubts about the legality of a national rule under EU law 
also played a role in a second case, K. and A., albeit more in the background. 
This  case  dealt  with  a  Dutch  rule  which  required  the  family  members  of  a 
third  country  national  residing  lawfully  in  the  Netherlands  to  pass  a  civic 
integration exam to enter the Netherlands. The Council of State referred to 
written observations of the Commission that this rule amounted to a breach 
of EU law.65 In cases such as Chakroun, it could be argued more cynically, as 
some interviewed judges did, that national courts are 'hiding behind the back' 
of the CJEU and that the CJEU is simply 'pulling the chestnuts out of the fire' 
for  national  courts.66  Some  judges  noted  that  in  case  of  democratically 
adopted laws a judge should only make a decision after careful deliberation 
also in the light of the separation of powers.67 Some judges acknowledged that 
the CJEU is sometimes used by national courts to say what they already know 
with  respect  to  an  issue  that  is  actually  clair.68  Again,  with  respect  to 
Chakroun, it was quite clear for the Council of State that the rule was contrary 
to  EU  law.  At  the  same  time,  it  should  be  acknowledged  that  the  Dutch 
courts have not shun away from striking down provisions in Dutch law in the 
field  of  migration  without  referring  a  question  to  the  CJEU.69  The  latter 
illustrates  that  the  CJEU  is  not  an  indispensable  ally.  In  addition,  it  also 

63  Case C-578/08 Chakroun EU:C:2010:117. 
64  Council  Directive  2003/86/EC  of  22  September  2003  on  the  right  to  family 
reunification  [2003]  OJ  L251/12.  The  European  Commission  held  that  this  Dutch 
rule  'raise[s]  particular  concerns'.  European  Commission,  'On  the  application  of 
Directive 2003/86/EC on the right to family reunification', COM(2008) 610/3, 7. 
65  These observations were made in the case of Imran, which was withdrawn. ABRvS 1 
April  2014  NL:RVS:2014:1196,  para.  16,  20.1  and  28;  Case  C-153/14  K.  and  A. 
EU:C:2015:453. 
66  Interviews 18, 44. 
67  Interviews 18, 72. 
68  Interviews 10, 12, 18. 
69  ABRvS 26 April 2017 NL:RVS:2017:1109. 

 
                                                 
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shows  that  Dutch  courts  are  in  general  not  acting  in  line  with  the  shield-
thesis, protecting national legislation from EU law.70 

Table 4: overview of the interview replies in relation to the politico-strategic 
reasons  

Mentioned 
by judges 
out of their 
own motion 
as relevant 
44; 10; 18 

Judges 
considered 
factor 
relevant 
when asked 
66 

Judges 
considere
d factor 
irrelevant 
when 
asked 
72; 89 

39 

14; 22; 52 

Theory 

Sword 

Shield 

Leapfrog 

Proxy 
Strike down 
national law or 
policy; 
considerable 
financial 
consequences 
Protect national 
legislation from 
EU law 
Challenge 
(another) higher 
court 

B. Leapfrog: Bureaucratic Struggles among Courts 

Comparatively, more evidence was found in support for the leapfrog thesis of 
the bureaucratic politics model. At first sight, the quantitative data seems to 
give solid empirical support to this thesis, but this data is slightly misleading 
on its own, as will be discussed towards the end of the section. 

Four out of the five references in the period 2013-2016 of lower asylum courts 
were actually used by those courts to explicitly question the interpretation of 
EU  law  by  the  Council  of  State  and  to  prompt  the  CJEU  to  'correct'  this 
restrictive  interpretation.71  There  are  also  two  older  cases  that  clearly 
illustrate the way in which lower asylum courts have turned to the CJEU as 

70  Ibid (n 46) for the general willingness of Dutch courts to apply EU law. 
71  NL:RBDHA:2013:BZ5462 (Rajaby), para. 2.5.5; NL:RBDHA:2015:1004 (Ghezelbash); 
NL:RBDHA:2016:6389 (K.), para.19; NL:RBDHA:2016:12824 (A. and S.), para. 5.2. 

 
                                                 
 
 
 
 
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their ally.72 The first case is Y.S. and dealt with the right of access of asylum 
seekers  to  the  minutes  relating  to  the  decision  of  the  Immigration  and 
Naturalisation  Service  to  grant  a  residence  permit.  These  minutes  are 
internal  preparatory  documents  containing  arguments  and  considerations 
which are relevant for the decision-making process. 73 They include personal 
data but also a legal analysis of these data in the light of the applicable rules.74 
The  Council  of  State  ruled  in  several  cases  that  this  legal  analysis  in  the 
minutes  does  not  constitute  'personal  data'  in  the  sense  of  the  Law  on  the 
Protection of Personal Data transposing the Data Protection Directive, but 
contains  the  personal  opinions  of  the  case  officer.75  Based  on  these 
considerations, the Council of State held that there is no right of access to 
these minutes.76 These judgments were criticised by scholars.77 In light of the 
criticism, it was not surprising that a lower judge saw a possibility to refer the 
matter to the CJEU in 2012. In its order for reference, the single-judge section 
of  the  district  court  Middelburg  explicitly  questioned  the  Council's 
restrictive  interpretation  of  'personal  data'  in  the  sense  of  the  Data 
Protection Directive.78 The court also implicitly criticised the fact that the 
Council of State had not referred the matter to the CJEU. What makes this 
case so interesting is that the Council did not stand by idly, but also made a 

72  Earlier the district court Zwolle asked questions in Imran about the compatibility of 
the civic integration exam with the Family Reunification Directive after the Council 
of  State  had  ruled  positively  about  this.  The  court,  however,  did  not  explicitly 
express  its  disagreement  with  the  Council.  Rb.  's-Gravenhage  31  March  2011 
NL:RBSGR:2011:BQ0453; C-155/11 Imran EU:C:2011:387. 

73  Joined cases C-141/12 and C-372/12 YS EU:C:2014:2081. 
74  ABRvS 26 June 2008 NL:RVS:2008:BD6230, para. 2.1.1 and 2.1.2; Rb. Middelburg 15 

March 2012 NL:RBMID:2012:BV8942, para. 3.2. 

75  Directive 95/46/EC of the European Parliament and of the Council of 24 October 
1995 on the protection of individuals with regard to the processing of personal data 
and on the free movement of such data [1995] OJ L281/31. 

76  ABRvS  2  February  2011  NL:RVS:2011:BP2831;  ABRvS  19  October  2011 
NL:RVS:2011:BT8554; ABRvS 2 November 2011 NL:RVS:2011:BU3136, para. 2.3.1. 
77  The  critique  was  related  to  the  restrictive  interpretation  of  'personal  data',  the 
limited  reasoning  of  the  Council  of  State,  the  insufficient  attention  for  the  Data 
Protection  Directive  as  well  as  the  Charter  of  Fundamental  Rights.  Overkleeft-
Verburg in JB 2011/66; Klingenberg in JBP 2013/6. 

78  Rb. Middelburg 15 March 2012 NL:RBMID:2012:BV8942, para. 9. 

 
                                                 
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reference for a preliminary ruling in a similar case. In its order, the Council 
made clear that it had not changed its opinion and explained its approach, 
while  implicitly  criticising  the  interpretation  of  the  lower  court.79  While 
Council's previous judgments on the same matter were motivated relatively 
shortly, the Council seemed to pull out all the stops to 'defend' itself in its 
order.  By  doing  so,  the  Council  also  aimed  at  moving  the  CJEU  in  its 
direction by formulating the questions differently than the district court and 
in line with its own approach.80 The latter illustrates that rather than being 
merely a dialogue between CJEU and national courts, the preliminary ruling 
procedure  also  becomes  a  forum  for  dialogue  between  different  national 
courts. 

The interpretation by the Council of State regarding the sufficiency of the 
safeguards  in  relation  to  mobile  security  monitoring  checks  was  also 
challenged by a lower court in Jaoo/Adil.81 The Dutch law enabled officials to 
carry out such checks up to 20 kilometres from the land border to examine 
whether  the  persons  stopped  satisfied  the  residence  requirements  under 
certain  safeguards.82  Confronted  with  a  rebellious 
lower  court  that 
challenged its approach, the Council again referred the matter to the CJEU 
in order to 'defend' itself and explain the Dutch legal system more elaborately 
than the district court did.83 Note that the Council of State did not react to 
the four more recent leapfrog cases by referring to the CJEU as it previously 

79  ABRvS 1 August 2012 NL:RVS:2012:BX3309, para. 2.23. 
80  The CJEU eventually sided with the Council of State. E.g. the first question: 'Should 
the second indent of Article 12(a) of [Directive 95/46] be interpreted to mean that 
there is a right to a copy of documents in which personal data have been processed, 
or is it sufficient if a full summary, in an intelligible form, of the personal data that 
have  undergone  processing  in  the  documents  concerned  is  provided?'  With  this 
question the Council of State seems to sketch some sort of middle way. In addition, 
the Council also sketches that a broad right of access would imply that reasons will 
no longer be included in the minute which would also disrupt the free and orderly 
decision making process. ABRvS 1 August 2012 NL:RVS:2012:BX3309, para. 2.27. 
81  Rb.  Roermond  16  February  2012  NL:RBROE:2012:BV6172,  para.  11.  Case  C-88/12 

Jaoo EU:C:2012:573. 

82  Such  safeguards  related  to  the  intensity  and  frequency  of  the  checks.  The  CJEU 
concluded  that  EU  law  did  not  prevent  such  checks.  Case  C-278/12  PPU  Adil 
EU:C:2012:508. 

83  ABRvS 4 June2012, NL:RVS:2012:BW7489. 

                                                 
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did  in  Y.S.  and  Jaoo/  Adil.  A  possible  legal  reason  or  justification  for  this 
silence could be that the CJEU has made it easier for higher courts to stick to 
their earlier finding of an acte clair in the case of Van Dijk. In this judgment, 
the CJEU held that the fact that other (national) courts ruled differently or 
did refer a question does not preclude the higher court from determining that 
the matter is clair.84 

The Council of State has not only been challenged by lower courts, but also 
by its administrative counterpart, the Tribunal, albeit in a more indirect way. 
In  Chavez  Vilchez,  the  Tribunal  questioned  the  restrictive  reading  of 
Zambrano as laid down in the Aliens Circular, which contains the policy rules 
as  applied  by  the  Immigration  and  Naturalisation  Service.85  The  Circular 
only applied Zambrano, giving mothers a right of residence derived from the 
right of residence of their children, to situations where the father is not in a 
position to care for the child.86 

These cases suggest that the leapfrog thesis could explain a high number of 
references. The previous overview, however, neglects that many lower court 
judges are actually reluctant to refer.87 Three out of the five interviewed lower 
court judges clearly rejected the idea of 'leapfrogging'. The majority of lower 
court judges think that it is primarily up to the highest courts to refer, given 
their  more  limited  law  making  function  as  first  instance  courts  or  because 
they  are  simply  more  loyal  to  the  highest  courts.88  This  preference  for  the 
highest courts to refer was not only mentioned during interviews, but is also 
laid  down  in  a  memo  issued  by  the  Committee  of  the  Presidents  of  the 

84  Joined cases C-72/14, C-197/14 X. & Van Dijk EU:C:2015:564, paras. 56-63. 
85  CRvB  16  March  2015  NL:CRVB:2015:665,  para.  4.2;  C-133/15  Chavez-Vilchez 

EU:C:2017:354; Case C-34/09 Zambrano EU:C:2011:124. 

86  The Tribunal did, however, not mention the case law of the Council of State upon 
which this restrictive reading was based. ABRvS 9 August 2013 NL:RVS:2013:2837.  
87  Table 3 shows that lower court judges referred five cases to the CJEU in four years. 
It could be argued that this is not a lot in the light of the fact that Dutch lower courts 
handle  hundreds  of  migration  cases  every  year.  EU  law  plays  an  important  role  in 
these cases, because migration is almost completely Europeanised. See supra  n 50. 
Kees Groenendijk & Mirjam van Riel, 'Migratierecht is bijna helemaal Unierecht' 
[Migration law is almost completely EU law] Asiel & Migratierecht 9 (2017) 405. 

88  Interview 14, 22, 51.  

 
                                                 
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Administrative  Law  Departments  of  District  Courts.89  Likewise, 
Groenendijk referred to a 'gentlemen's agreement' between the Council of 
State  and  lower  asylum  courts  that  is  the  Council  of  State  who  should  in 
principle refer.90 Only one interviewed judge seemed to endorse the 'leapfrog' 
argument, since he/she referred to 'a bad taste in his/her mouth' as a result of 
the restrictive case law of the Council of State and mentioned the option of 
referring  as  an  important  mechanism  to  challenge  this  case  law.91  Another 
judge  took  a  more  middle-ground  position  to  give  the  highest  courts  the 
chance  to  rule  on  an  issue  first.  He/she  would  only  refer  when  the  highest 
courts are not taking up their responsibility and do something 'strange'.92 

Summing up, there have been several references in which politico-strategic 
reasons played a role, especially leapfrog-references of lower migration courts 
in  which  they  challenged  the  restrictive  approach  of  the  Council  of  State. 
However,  politico-strategic  reasons  can  only  explain  a  limited  number  of 
references  and  certainly  not  explain  the  cases  that  have  not  been  referred. 
These strategic reasons also fail to explain the reluctance of many lower court 
judges to refer given their respect for the judicial hierarchy. As the interviews 
show, the idea of leapfrogging is not widely shared among lower court judges. 
This  is  further  illustrated  by  the  fact  that  the  great  majority  of  Dutch 
references come from the highest courts.93 The composition of the interview 
sample  –  11  higher  court  versus  5  lower  court  judges  –  can  also  explain  the 
seeming difference between the outcomes on the basis of the legal analysis –  
finding some leapfrog cases – and the denial of strategic reasons by judges. In 
addition, the differences could also stem from the earlier mentioned fact that 

89  One advantage for the highest courts is that they could more easily bundle similar 
cases. In addition, the highest courts have more experience, time and staff to prepare 
references.  Interview  83.  Memo  van  het  Landelijke  Overleg  Voorzitters  sectoren 
Bestuursrecht van de rechtbanken (LOVB), Sandra van 't Hof, 'Werkwijze stellen 
van prejudiciële vragen', 12 June 2013. For further discussion and analysis, see Jasper 
Krommendijk, 'De lagere rechter aan banden. Is er nog ruimte voor de lagere rechter 
om te verwijzen naar het HvJ?'[The lower court judge restricted. Is there still room 
for the lower court judge to refer to the CJEU?] (2018) SEW 183. 

90  Groenendijk (n 32). 
91  Interview 39. 
92  Interview 83. 
93  Ibid (n 22). 

                                                 
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judges  (un)consciously  hide  strategic  reasons,  because  acknowledging  such 
considerations would conflict with their self-image and professional ethos of 
being a judge.94 More research is thus necessary to further substantiate the 
claim that non-strategic reasons matter most.  

The  research  conducted  so  far  on  Dutch  references  suggests  that  politico-
strategic  reasons  play  an  even  more  limited  role  in  fields  other  than 
migration.95 One former asylum judge who now practices in tax law observed 
that the confrontational relationship between different levels in the judicial 
hierarchy  is  typical  for  asylum  law,  where  emotions  and  moral  or  ethical 
considerations play a bigger role than in an area such as tax law.96  

2. Non-strategic Reasons 

This  section  examines  non-strategic  reasons  for  (not)  referring  which  have 
been described in section II.1.B. It shows that judges primarily decide (not) 
to refer for pragmatic reasons (section III.2.B), whereby personal – and to a 
lesser  extent  institutional  –  factors  also  play  an  important  role  (section 
III.2.C-D). The parties have only a limited influence on this referral decision 
(section III.2.E). The interviews and legal analysis found hardly any support 
for the legal formalist idea attributing references to the judges' eagerness to 
comply  with  their  obligation  to  refer,  or  more  broadly,  to  apply  EU  law 
(section III.2.A). 

Table  5:  overview  of  the  interview  replies  in  relation  to  the  non-strategic 
reasons 

Judges 
considered 
factor 
relevant 
when 
asked 

Judges 
considered 
factor 
irrelevant 
when 
asked 

Mentioned 
by judges 
out of 
their own 
motion as 
relevant 
66; 24; 91; 
72 

Theory 

Compliance 
pull/ legal 

Proxy 
The need to 
comply with 
the obligation 

94  Ibid (n 58-60). 
95  Krommendijk (n 89). 
96  Interview 51. 

 
 
 
                                                 
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formalism 
(2.2.1) 

Pragmatism 
(2.2.2) 

Personal/ 
Psychological 
(2.2.3) 

to refer/ 
correct 
application of 
the Cilfit 
doctrine 
Need of legal 
clarity; answer 
perceived 
necessary to 
resolve the 
case 
Reasonable 
reading of 
Cilfit 
Natural 
reluctance 
(e.g. decide 
themselves) 
Importance 
of the 
question 
Consequences 
of referring 
for the parties 
Efficiency/ 
delay in the 
case (and 
other cases) 
Resources 
necessary to 
write 
question, time 
Position in 
the career 
Background/ 
expertise 
Knowledge of 
EU law/ 
procedure 
Self-
perception: 
e.g. lower 

83; 66; 43; 
91; 89; 10, 
72 

44; 66; 89; 
10; 18; 72 

22, 14;25; 
66; 81; 44; 
72; 89 

12; 24; 66; 
44; 12; 72; 
18 
22; 66; 24; 
91 

22; 83; 14; 
91; 72; 10; 18 

39 

24; 66 

39 

10, 44 

10, 44 

14 

22; 83; 14; 51 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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courts as fact 
finders 
Fear to ask 
(wrong) 
question 
Satisfaction of 
writing a 
reference/ 
contributing 
to EU law 
Awareness 
(e.g. 
specialised 
EU law 
committees in 
courts) 
Case 
management 
(backlog of 
cases) 
Parties 
requested 
referral 

Institutional 
(2.2.4) 

Request of 
the Parties 
(2.2.5) 

14 

12; 10; 39 

44 

66; 24; 18, 
44, 81, 89. 

44; 18; 89 

22; 91; 44 

83; 66; 24; 
43; 10, 12, 
91; 72 

A. Compliance Pull/ Legal Formalism 

During the interviews, only some judges mentioned the formalist reason that 
a case is referred with the idea of complying with the obligation to refer under 
Article 267 TFEU. Most judges emphasised that a referral is made because 
there  is  uncertainty  regarding  the  meaning  of  a  particular  provision,  for 
example, because it is used in contradictory ways in EU rules or has not been 
interpreted by the CJEU before.97  

Further support for the idea that legal formalist considerations do not figure 
prominently  in  judges'  mind  is  that  almost  all  judges  of  the  highest  courts 

97  Interviews 10, 43, 66, 72, 83, 89, 91. One example is the case of Zh. and O. in which it 
was unclear whether there are differences in the interpretation of 'public order' for 
EU citizens or third country nationals. Case C-554/13, Zh. and O. EU:C:2015:377. 

 
 
 
 
 
 
 
 
 
 
                                                 
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generally  employ  a  'reasonable  reading'  of  the  Cilfit-exceptions.98  Several 
judges held that when the question is 75-80% clair, there is no need to refer, 
especially  in  the  field  of  migration  where  it  would  be  possible  to  send  a 
handful  of  cases  to  Luxemburg  every  week.99  The  question  is  not  only 
whether there is doubt, but also whether the reference is 'worth the effort'. 
These views thus suggest that Cilfit is in practice not applied word-for-word, 
but  rather  with  'common  sense'  where  other  considerations  play  a  role.100 
Some judges acknowledged that they (implicitly) apply the less strict Köbler 
'test'. On the basis of this test, there is only a problem, namely state liability, 
'in  the  exceptional  case  where  the  court  has  manifestly  infringed  the 
applicable  law'  which  does  not  include  the  incorrect  reading  of  CJEU 
judgments.101 Given the reasonable reading of Cilfit, it is not surprising that 
judges of the Council of State interpreted the CJEU judgments in Ferreira and 
Van Dijk as giving more leeway to national courts.102 Especially in Van Dijk, 
the  CJEU  confirmed  that  the  fact  that  other  (national)  courts  ruled 
differently or did refer a question does not detract from the highest court's 
conclusion that the matter is clair. The Council used these judgments as an 
additional  justification  for  non-referral  in  several  migration  cases.103  One 
lower court judge held that this reasonable Cilfit-reading by the Council of 
State is done selectively whereby van Dijk is merely used as a fig leaf, while 

98  'A reasonable reading of Cilfit' is also mentioned in Association of the Councils of 
State  and  Supreme  Administrative  Jurisdictions  of  the  EU  and  Network  of  the 
Presidents of the Supreme Judicial Courts of the EU (ACA), 'Report of the working 
group  on  the  preliminary  rulings  procedure',  www.aca-europe.eu/seminars/ 
2007_DenHaag/Final_report.pdf, last accessed 31 July 2018, 10-11.  

99  Interviews 44, 66, 89; Sevenster & Wissels (n 32) 90. 
100 Interviews 18, 44, 72; Hanna Sevenster, 'Good old Cilfit – pleidooi voor een 'make-
over'' [Good old Cilfit – plea for a 'make-over'] in Tristan Baumé et al (eds), Today's 
Multi-layered Legal Order: Current Issues and Perspectives: Liber Amicorum in Honour of 
Arjen W.H. Meij (Paris 2011) 297; Sevenster & Wissels (n 32) 91. 
101  Interviews 10, 18; Case C-224/01 Köbler EU:C:2003:513, paras. 53.  
102  Joined cases C-72/14 & C-197/14 X. & Van Dijk EU:C:2015:564, paras. 56-63; Case C-
160/14 Ferreira da Silva EU:C:2015:565, paras. 40-42; Sevenster & Wissels (n 32) 87-
89. 

103  See several post-J.N. cases; ABRvS 13 May 2016 NL:RVS:2016:1624, 1383 and 1384. 
See also the credibility assessment cases. ABRvS 13 April 2016 NL:RVS:2016:890, 
891; ABRvS 5 December 2016 NL:RVS:2016:3231.  

                                                 
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another judge noted that the Council of State should have referred more (or 
other) questions.104 

B. Pragmatism 

The interviews and legal analysis clearly show that judges primarily operate in 
a pragmatic way and include various considerations in their decision (not) to 
refer. There is a natural tendency among judges to avoid referring a case to 
the CJEU all too easily, especially among judges from the highest courts. It is 
further  illustrated  by  the  reasonable  reading  of  Cilfit.105  This  'natural 
reluctance'  means  that  disputes  are  primarily  solved  on  other  grounds, 
preferably  national  grounds.  Both  existing  literature  and  interviews  show 
that national court judges' first instinct is to decide themselves even though 
they do not resist CJEU intervention as such, as will be later argued (section 
IV.2).106 This also means that a case is not immediately referred when there 
is  only  the  slightest  doubt.107  The  reluctance  to  refer  among  lower  court 
judges  primarily  stems  from  the  way  in  which  they  perceive  their  judicial 
function as 'primary' courts of fact finding (see section III.1.B).  

The first reason for the general reluctance is that formulating questions, as 
well  as  the  order  of  reference,  is  extremely  time  consuming  and  labour 
intensive.108 One judge stated that formulating a preliminary reference is as 
difficult as answering it.109 A lower court judge also noted that it is easier to 
decide the case yourself.110 A second reason for the reluctance is that a referral 
means that not only the referred case, but also similar cases are put on hold 
until  the  CJEU  hands  down  a  judgment.111  Such  a  delay  plays  an  especially 
important role in the field of migration where there are often many, possibly 

104 Interviews 39 and 83. 
105  Interviews 10, 44, 89; Sevenster (94) 305. 
106 Sevenster & Wissels (n 34) 187; Interviews 10, 66, 72, 81, 89. 
107  Interviews 18, 44. 
108 This is also because the highest courts have the practice of involving many judges and 

référendaires. Interviews 24, 66, 81. 

109 Sevenster (94) 301. 
110  This judge also stated that it costed two months of extra work in addition to normal 

work flow. Interview 39. 

111  Interviews 14, 39, 83. Sevenster & Wissels (n 32) 90. 

 
                                                 
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hundreds of cases, in which the same question is discussed.112 The interviewed 
judges acknowledged that justice would come to a standstill if every question 
of  EU  law  about  which  there  is  doubt  was  immediately  referred  to  the 
CJEU.113 In the same vein, the current President of the Aliens Chamber of 
the Council of State, Nico Verheij, stated that a responsible judge takes into 
consideration  the  consequences  of  such  a  delay.114  The  consequences  of  a 
referral on other cases seems to be less of a relevant consideration for lower 
court  judges.115  These  two  reasons  for  the  general  reluctance  also  have  an 
institutional  dimension  which  relate  to  the  capacity  and  case  management 
system within courts (see section III.2.D). 

Having  described  the  general  reluctance  and  the  pragmatic  mindset  of 
judges,  the  following  questions  remain:  how  do  judges  make  the  decision 
(not)  to  refer  in  concrete  cases  and  what  considerations  play  a  role?  The 
decision (not) to refer primarily boils down to a balancing exercise between 
conflicting interests: the importance of the question versus the costs of the 
delay  in  terms  of  cases  that  need  to  be  put  on  hold  and  the  impact  on 
society.116  Judges  held  that  referral  is  less  likely  when  an  issue  is  only 
incidental or relates to legislation which has been changed already or will be 
changed  in  the  near  future.  An  exception  to  this  is  when  it  relates  to  an 
important  matter  of  principle.117  Nonetheless,  when  the  question  is  too 
important in terms of the number of people and cases affected, it could be 
more logical not to refer, because it is not considered desirable to put all too 
many cases on hold for an uncertain period of time.118 A recent example in 
which this dilemma played a role are the cases on the intensity of review of 
the credibility assessment of the asylum claim in relation to Article 46(3) of 

112  Interview  14.  See  also  ABRvS  14  July  2011  NL:RVS:2011:BR3771,  para.  2.8.4. 

Sevenster & Wissels (n 31) 92; Groenendijk (n 32). 

113  Interviews 10, 18. 
114  Nico Verheij, 'Voorwoord' [Foreword], in Bosma et al (n 32) 83. 
115  Interview  39.  One  judge  was  silent  on  this,  while  another  also  brought  up  these 

consequences. Interviews 22, 83. 

116  Interviews 44, 72, 89; De la Mare and Donnelly (n 6) 372 
117  Interviews 12, 18, 24, 32, 44, 66; Sevenster (94) 301. 
118  Interview 18. 

                                                 
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the  Asylum  Procedures  Directive.119  The  Council  of  State  explicitly 
acknowledged that the text of Article 46(3) of the Procedures Directive does 
not  provide  a  definite  answer  and  noted  that  there  was  no  case  law  of  the 
CJEU  (yet)  clarifying  this  provision.120  Instead  of  referring  those  open 
questions to the CJEU, the Council answered those questions itself and held 
that the judicial review of the credibility assessment should be more intensive 
than was common practice to that date. This was also because a referral would 
mean that the Council 'could almost shut down' as these questions went to 
the core of its work and would imply that a very large number of cases had to 
be put on hold. Nonetheless, sometimes judges considered that a referral was 
unavoidable in order to give judgment, despite the high number of affected 
cases. This has been seen for instance in the case A., B., C. which considered 
the intensity of review of the credibility of a declared sexual orientation of an 
asylum seeker.121 Some judges, also  from lower courts, stated that they also 
consider  the  position  of  the  affected  person(s)  and  examine  whether  a 
reference has negative consequences for the parties.122 One lower court judge, 
for example, noted that judges should be careful in referring a legal question 
when this is not 'helping' the asylum seeker. This judge argued that he/she 
would  have  never  referred  Ghezelbash,  which  concerned  the  right  to  an 
effective legal remedy under the Dublin III Regulation for this reason.123 This 
is  because  a  reference  would  lead  to  considerable  delay  with  an  uncertain 
outcome  that  could  also  be  against  the  interests  of  the  asylum  seeker. 
Another court decided to refer the case, but the Council of State annulled the 
judgment of the referring lower court leaving Ghezelbash empty handed.124 

119  Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 
on  common  procedures  for  granting  and  withdrawing  international  protection 
[2013] OJ L 180/60. 

120  ABRvS 13 April 2016 NL:RVS:2016:890-891, para. 5.2. 
121  Joined cases C-148/13 until C-150/13 A., B., C. EU:C:2014:2406. 
122  Interviews 22, 32, 91. 
123  Regulation (EU) No.604/2013 of the European Parliament and of the Council of 26 
June  2013  establishing  the  criteria  and  mechanisms  for  determining  the  Member 
State responsible for examining an application for international protection lodged in 
one of the Member States by a third-country national or a stateless person [2013] OJ 
L180/31; Case C-63/15 Ghezelbash EU:C:2016:409. 
124  ABRvS 18 May 2017, NL:RVS:2017:1326; Interview 22. 

 
                                                 
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Judges  from  the  highest  courts  mentioned  other  pragmatic  and  practical 
considerations. Sometimes judges decide not to refer and to wait until a case 
that  lends  itself  better  for  referral  comes  before  the  court.  That  way,  the 
latter case allows the court to show the full picture of the issue to the CJEU.125 
At the same time, judges occasionally considered it necessary to refer even 
though similar questions were already referred to the CJEU by other courts. 
The reason was to 'feed' the CJEU with the view of the court and to make 
clear that certain issues also play a role in other Member States. One example 
is the case of G. and R. on the right to be heard in relation to the extension of 
detention of illegally staying third-country nationals.126 The Dutch Supreme 
Court had already asked similar questions about the right to be heard and the 
consequences of breaches of those rights from the perspective of the rights 
of defence.127 The Council of State considered it necessary to refer this case 
to underline the differences between the context of the two different fields 
of law, namely customs and asylum. Moreover, the Council wanted a quick 
answer  in  G.  and  R.  because  the  claimant  was  in  detention.  It  therefore 
successfully  submitted  a  question  via  the  urgent  preliminary  ruling  (PPU) 
procedure.  The  Council  also  decided  to  refer  in  K.  and  A.  about  civic 
integration requirements despite there being partly similar question raised by 
a  German  court  in  Dogan.128  However,  the  German  court's  question  had  a 
subsidiary character which entailed the risk of the CJEU not answering it.129 

C. Personal/ Psychological Factors 

This study also found that personal factors and personal differences among 
judges influence to what extent the judges are willing and able to refer. This 
research did not find much support for the thesis that the limited knowledge 
of EU law and the preliminary ruling procedure is an obstacle for referring.130 
This is illustrated by the relatively high number of references in the field of 

125  Interview 10; Sevenster & Wissels (n 33) 91. 
126  Case C-383/13 PPU G. and R. EU:C:2013:533. 
127  Case C-437/13 Unitrading EU:C:2014:2318. 
128  Case C-138/13 Dogan EU:C:2014:2066. 
129  ABRvS 1 April 2014 NL:RVS:2014:1196, para. 27. 
130  Only  one  lower  court  judge  mentioned  this  as  an  obstacle.  Interview  14.  Another 
lower court judge also acknowledged that there is too limited expertise to refer in 
Zambrano cases. Interview 22. 

                                                 
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137 

migration and the eagerness of judges to engage with EU law.131 In addition, 
migration  law  is  highly  Europeanised  which  means  that  judges  are  simply 
forced to be experts in EU law.132 Having said that, the (EU law) background 
of 
judges  matters.  Judges,  who  have  an  academic  or  governmental 
background and/or have more EU law expertise, have a more positive attitude 
towards  the  CJEU  and  are  more  accustomed  with  working  with  a 
supranational court as the highest authority. By contrast, career judges find it 
more annoying to refer since it disturbs their autonomy as a judge deciding 
on  disputes,  as  well  as  the  national  judicial  process.133  One  judge  with  a 
background in EU law held that it is not surprising that career judges  who 
have had a lifelong career in the judiciary and have made it to the top court 
are not all of a sudden completely devoted to the CJEU, but instead have a 
more  sceptic  attitude  in  the  sense  of  'Is  it  up  to  the  CJEU  to  determine 
this'?134 As mentioned before, there are also clear differences between lower 
court judges in terms of their perception of their judicial function as 'primary' 
courts of fact (see section III.1.B). 

The  literature  has  also  identified  psychological  considerations.  During 
interviews, very few judges actually mentioned those. Only some lower court 
judges expressed a fear that they might miss essential points in their reference 
and, hence, prefer not to refer at all.135 There were, however, a couple of judges 
who  argued  in  the  opposite  way  by  stating  that  they  enjoy  writing  a  good 
reference.136 Some judges even mentioned that they derive satisfaction from 
referring  to  the  CJEU,  also  because  they  could  contribute  to  the 
development of EU law.137 

131  Ibid (n 44-45). 
132  Groenendijk & van Riel (n 87). 
133  Interviews 10, 44. 
134  Interview 10. 
135  Interview 14. Another judge gave this as an explanation as to why a reference costs so 

much time. Interview 39. 

136  Interviews 10, 44. 
137  At the same time, they noted that the primary purpose of the procedure is to solve a 

dispute. Interviews 10, 12, 39. 

 
                                                 
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D. Institutional 

Institutional  factors  matter  as  well  and  can  explain  why  the  two  highest 
courts  have  become  less  reluctant  to  refer  over  time,  also  in  the  field  of 
migration. While the Council of State was criticised years ago for not paying 
sufficient attention to EU law and withholding references from the CJEU, 
experts  acknowledge  that  this  has  improved  in  recent  years.138  Several 
institutional  reasons  account  for  this,  including  better  coordination  of  EU 
law questions, the creation of a committee on EU law and a documentation 
service that keeps close track of EU law developments.139 Both the Council of 
State  and  Tribunal  have  regular  meetings  where  EU  law  developments  are 
discussed.140 In addition, more judges with a prominent EU law background 
have been appointed to the Council since 2005.141  

There are some institutional factors that discourage references. Some judges 
acknowledged  that  the  case  management  system  within  courts  affects  the 
general  (reluctant)  attitude  towards  referring.  Both  the  financial  system 
rewarding judges based on the number of cases they decide and the increasing 
pressure on the capacity of courts favour a tendency to solve disputes without 
referring.142  

E. The Role of the Parties 

Another factor influencing the courts willingness to refer is the role of the 
parties and their requests to refer. The legal analysis and the interviews show 
that such requests have only had a minimal impact to the highest courts and 
most  decisions  to  refer  were  made  by  courts  from  their  own  motion.143 

138  Groenendijk held that the Council of State did not take its task as highest court in 
relation to EU migration and asylum law seriously before 2008. Kees Groenendijk in 
JV 2011/4, par. 1.  

139  Interviews 18, 44, 81, 89. 
140 Interviews 24, 66, 89. 
141  This  could  also  be  partly  attributed  to  Mortelmans  (2005-2016),  who  also 

championed the use of the preliminary ruling procedure. Interview 44. 

142  Interviews 14, 20. 
143  Interview 10, 12, 43, 91. It could also be that the parties themselves are not in favour 
of  referring  because  of  the  delay,  which  is,  however,  also  not  considered  to  be 
decisive for a court. E.g. NL:RVS:2014:27; Interview 10, 72. 

                                                 
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National courts are not obliged to act on – or even take into account – such 
requests.144  It  seems,  however,  that  lower  court  judges  attach  more 
importance  to  parties'  requests.145  The  limited  impact  of  requests  is 
illustrated by Table 6 which indicates that in the majority of decisions of the 
lowest  and  highest  courts  not  to  refer  there  was  an  explicit  reference  to  a 
request by (one of) the parties. This number is possibly even higher, because 
it could well be that courts do not explicitly mention that there was a request. 
Judges of both the Council of State and Tribunal noted that they have started 
to refer to the parties' requests consistently as a result of the case law of the 
ECtHR  which  requires  courts  to  do  so  on  the  basis  of  Article  6  ECHR.146 
Several lower court judges were not aware of this case law, but nonetheless 
emphasised  the  importance  of  providing  reasons  when  a  well-founded 
request was made.147 Table 7 shows that in only two of the thirteen referred 
cases there was a request of the parties to refer. Nonetheless, it could be that 
courts sometimes omit a reference to a request because they do not consider 
such  reasoning  necessary.148  Even  though  one  should  be  careful  in 
interpreting the quantitative data on their own, those data were confirmed 
during the interviews. An explanation for the limited impact of requests of 
the parties is that, as several interviewees noted, the quality of the requests 
differs and only few of them are serious and well-founded.149 

Table  6:  The  decisions  not  to  refer  that  mention  a request  of  (one  of)  the 
parties 

144  Case 283/81 Cilfit EU:C:1982:335, para. 9. 
145  One  judge  even  held  that  he  would  almost  never  refer  without  one  of  the  parties 

making such a request. Interview 22. 

146  Interviews 5, 10, 12, 31, 69, 77; Sevenster & Wissels (n 32) 89;  Dhahbi v Italy ECHR 
nr.  17120/09  CE:ECHR:2014:0408JUD001712009;  Schipani  v  Italy  ECHR  nr. 
38369/09; CE:ECHR:2015:0721JUD003836909. 

147  Interviews 22, 83. One judge was aware of this case law and also held that this case law 
is applicable to lower courts, despite this being far from clear. Interview 39. For a 
discussion, see Jasper Krommendijk, ''Open Sesame!' Improving access to the CJEU 
by obliging national courts to reason their refusals to refer' (2017) 1 European Law 
Review 46. 
148  Interview 89. 
149  Interviews 10, 12, 24, 72. 

 
                                                 
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Council of 
State 
% 

N 

Tribunal 

N 

% 

Lower asylum 
courts 
% 

N 

18 

69% 

0 

0% 

35 

73% 

Total 

N 

53 

% 

71% 

8 

31% 

1 

100% 

13 

27% 

22 

29% 

26 

100% 

1 

100% 

48 

100% 

75 

100
% 

Request is 
explicitly 
mentioned 
Request is 
not 
mentioned 
Total 

Table 7: The referred cases that mention a request of (one of) the parties 

Council of 
State 
% 
20% 

N 
1150 

Tribunal 

N 
0 

% 
0% 

Lower asylum 
courts 
% 
20% 

N 
1151 

Total 

N 
2 

% 
15% 

4 

5 

80% 

3 

100% 

4 

80% 

11 

85% 

100% 

3 

100% 

5 

100% 

13 

100% 

Request is 
explicitly 
mentioned 
Request is 
not 
mentioned 
Total 

Despite  the  limited  impact  of  parties'  requests  to  refer  in  the  investigated 
period, there have been a couple of successful instances whereby a joint and 
organised endeavour of asylum lawyers, academic EU law experts and NGOs 
managed to obtain a referral.152 This includes Imran, referred to the CJEU in 
2011 by the district court of Zwolle, which concerns the compatibility of the 
civic integration exam with the Family Reunification Directive.153 Also Sahin, 

150  NL:RVS:2014:1196 (K. and A.). 
151  NL:RBDHA:2016:12824 (A. and S.), para. 3. Interviews confirmed that there was no 
request in Rajaby and Ghezelbash. For the other two referral it is (yet) unknown. 
152  For an account of a successful case of bottom-up legal mobilisation in relation to the 
Return Directive in Italy, see Virginia Passalacqua, 'El Dridi upside down: a case of 
legal  mobilization  for  undocumented  migrants'  rights  in  Italy',  Tijdschrift  voor 
Bestuurswetenschappen en Publiekrecht (2016) 215. 

153  Council  Directive  2003/86/EC  of  22  September  2003  on  the  right  to  family 
reunification  [2003]  OJ  L251/12.  Jos  Hoevenaars,  A  people's  court?  A  bottom-up 
approach  to  litigation  before  the  Court  of  Justice  of  the  European  Union  (Eleven 
International Publishing 2018) 209. 

 
 
 
 
 
 
 
 
                                                 
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referred  to  the  CJEU  by  the  Council  of  State  in  2006,  was  instigated  by  a 
Working Group set up in 2003 with a view to obtain a reference to the CJEU 
in  order  to  challenge  the  increased  administrative  fees  for  residence 
permits.154  In  several  other  cases,  such  (academic)  experts  have  only  got 
involved  after  references  were  made.155  A  Strategic  Litigation  Committee, 
consisting of academics and asylum lawyers, has been active since 2014 and is 
actively  looking  for  cases  which  can  be  brought  before  the  CJEU  or  the 
ECtHR.  This  Committee  has  so  far  had  little  impact.156  Of  the  thirteen 
referred cases included in this article, the Committee was only involved after 
the reference was made in J.N. and Ghezelbash. 

When  discussing  the  role  of  the  parties  in  relation  to  the  instigation  of  a 
reference it is also important to discuss the position of the State Secretary for 
Justice and Security which is responsible for asylum and migration. It could 
be argued that this 'party' has had a greater effect on the willingness or ability 
of courts to refer. This is because the State Secretary has used its power in, 
for  example,  Imran  and  Rajaby  to  issue  a  residence  permit  strategically  in 
order to avoid a referral or prevent a reference from being answered by the 
CJEU.157  When  the  State  Secretary  does  so,  a  ruling  from  the  CJEU  is  no 
longer necessary because it can obviously not affect the outcome of the case. 
As a result, the case is withdrawn from the docket of the CJEU. There are 
also cases where the court expressed an intention to refer, and draft questions 
were already prepared, but the case was settled (shortly) before being lodged 
with  the  CJEU.158  The  risk  or  threat  of  a  reference  can  thus  change  the 
behaviour of the State Secretary. 

154  Hoevenaars (n 152) 215. 
155  Examples include the case of Elgafaji (n 46) and Zambrano (n 49). Hoevenaars (n 152) 

212-213. 

156  The  project  leader, Sadhia Rafi, confirmed that until March 2017 the work of the 
committee has not caused a court to refer. The request of the parties as well as a note 
of the committee were, however, referred to in NL:RVS:2016:890-891. See also the, 
so far unsuccessful, strategic litigation case of the Dutch Public Interest Litigation 
Project with respect to Afghan 1F'ers. NL:RBDHA:2017:11809. 

157  C-155/11 Imran EU:C:2011:387; C-158/13 Rajaby. See also Baumgärtel (n 45) 11-13. 
158  Groenendijk (n 32) 17-18. 

 
                                                 
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In sum, this section provided an overview of a myriad of reasons and factors 
affecting  the  willingness  of  judges  to  refer,  even  though  some  have  a  more 
limited explanatory value (see table 9 for an overview). The preceding analysis 
shows that several non-political reasons or factors play a more important role 
than political reasons for the decision (not) to refer. There is often more than 
one  reason  that  could  explain  a  decision  (not)  to  refer,  sometimes  even 
conflicting reasons for and against. Hence, it is very difficult to explain the 
judicial  decision-making  in  relation  to  referring  to  the  CJEU  by  a  single 
factor. 

IV. THE NATIONAL COURT'S FOLLOW-UP  

The  second  question  of  this  article  deals  with  the  follow-up  to  the 
preliminary rulings by the national court. Dutch judges have generally been 
content  with  their  interaction  with  the  CJEU  and  its  judgments  (section 
IV.1). At the same time, the judges discussed several unclear and problematic 
judgments during the interviews (section IV.2). They also expressed concerns 
about  the  functioning  of  the  preliminary  ruling  procedure  and  the  limited 
'dialogue' with the CJEU (section IV.3). However, these factors did not affect 
their willingness to apply the CJEU judgment to the national dispute. On the 
contrary, they applied almost all judgments fully and automatically (section 
IV.4). This once again bears witness to the pragmatism on the part of national 
judges. 

1. Judges' Satisfaction with the Usefulness of CJEU Judgments 

What is interesting about the perception of CJEU rulings by national judges 
is that they assess them not so much from an analytical perspective. They are 
not interested in whether the CJEU answered all questions satisfactorily and 
in line with its earlier jurisprudence. Rather, what matters most for national 
judges is whether the CJEU judgment helps them to solve the case at hand.159 
This means that judges primarily look at what the CJEU has said and whether 
that is easily applicable, instead of focusing on what the CJEU failed to say.160 
This is not to say that judges disagreed with the shortcomings identified in 

159  See also Micklitz (n 30) 433. 
160 Interviews 10, 18, 91. 

                                                 
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143 

the academic literature, such as the insufficient judicial reasoning, incorrect 
rephrasing of the question, or a neglect of some questions or the reasoning of 
the referring court. Almost all judges acknowledged these deficiencies. But it 
did not prevent them from concluding that a ruling by the CJEU was useful. 
During  the  interviews,  most  judges  named  several  judgments  –  elsewhere 
criticised as deficient – that they considered adequate, as illustrated in Table 
8.  One  example  that  shows  the  difference  of  perspective  is  J.N.,  which 
concerned  the  detention  of  third  country  nationals  with  a  view  to  their 
removal.  While  the  CJEU  only  paid  relatively  limited  attention  to  the 
relationship between Article 8(3) of the Reception Conditions Directive and 
the case law of the ECtHR, which was explicitly included in the questions of 
the Council of State, the judgment was considered useful.161 

Table 8: Overview of cases that were explicitly discussed during interviews162 

Referring 
court 

Clear and useful 
judgments 

In between 

Unclear and 
problematic 
judgments 
C-225/12, Demir 

C-148/13-150/13, A., 
B., C. 
C-187/10, Unal 

C-579/13, P. and S. 

C-485/07, Akdas 

Council 
of State 

Tribunal 
Lower 
courts 

C-383/13 PPU, G. and 
R.  
C-554/13, Zh. and O. 
C-153/14, K. and A. 
C-601/15 PPU, J.N. 

C-63/15, Ghezelbash 

Almost  all  interviewed  judges  held  that  the  judgments  of  the  CJEU  are 
generally useful.163 Some interviewees were a bit more critical and emphasised 
that  the  quality  varied.164  At  the  same  time,  they  acknowledged  that  such 
criticism with respect to certain judgments is normal and is something they 

161  Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 
laying down standards for the reception of applicants for international  protection 
[2013] OJ L180/96; Case C-601/15 PPU J.N. EU:C:2016:84. 

162  The following judgments of the Tribunal were not discussed in interviews: C-171/13 
Demirci; C-133/15 Chavez-Vilchez. The same holds true for the district court cases C-
550/16  A.  and  S;  C-331/16  K.;  C-18/16  K.  (no  CJEU  judgments  at  the  moment  of 
interviewing); C-158/13 Rajaby (removed). 

163  Interviews 10, 12, 18, 24, 44, 66, 72, 91.  
164  Interviews 18, 24, 89.  

 
 
 
 
 
 
                                                 
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are familiar with themselves.165 One judge held that approximately 80% of the 
requested CJEU rulings were answered in a satisfactory way, while another 
noted that three out of ten cases were less satisfactory.166 

2. Unclear and Problematic CJEU judgments 

There have hardly been any judgments that judges considered impossible to 
implement.  The  exception  is  the  'extremely  difficult'  case  of  Demir 
concerning  the  meaning  of  the  term  'legally  resident'  in  Article  13  of  the 
Association Council Decision 1/80. This judgment was referred to as a true 
'brainteaser' that needed to be studied for days to grasp its meaning.167 

Despite their general satisfaction, judges discussed several CJEU judgments 
that they considered problematic. What judges found most troublesome is 
that  CJEU  judgments  contain  an  unclear  answer  or  no  answer  at  all.  Some 
judges held that especially in the migration law area, the CJEU renders too 
many  judgments  that  lack  an  unambiguous  answer,  while  including  several 
criteria  for  individual  assessments  instead  of  clear-cut  and  automatic 
limits.168 One lower court judge noted that referring courts should be critical 
towards themselves as well, because an unclear question inevitably leads to an 
unclear or vague answer from the CJEU.169 The Tribunal was confronted with 
a  rather  ambiguous  judgment  in  P.  and  S.  about  the  obligatory  integration 
exam under pain of a fine. The CJEU gave the Tribunal the difficult task to 
examine whether the means of implementing that obligation jeopardise the 
objectives  of  the  Directive  on  third-country  nationals  who  are  long-term 
residents.  The  CJEU  required  the  Tribunal  to  consider  the  'specific 
individual  circumstances'.170  The  case  A.,  B.,  C.  was  also  mentioned  as  an 
example in this context, because according to some judges, the CJEU only 
mentioned  what  courts  could  not  do  in  order  to  assess  the  credibility  of  a 

165  Interviews 10, 44.  
166  Interviews 91, 10.  
167  Several flow charts were made for this purpose. Case C-225/12 Demir EU:C:2013:725. 
168  Interviews 66, 72, 81, 89. 
169  Interview 83. 
170  Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-
country nationals who are long-term residents [2003]  OJ L16/44; Case C-579/13 P. 
and S. EU:C:2015:369, para 49. 

                                                 
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The Preliminary Reference Dance 

145 

declared  sexual  orientation  of  an  asylum  seeker.171  One  judge  even  asked 
whether it was useful to refer in the end, because of the loss in time and the 
fact that the CJEU completely left it to the national court to solve the case 
on the basis of considerations that the Council of State had already identified 
and discussed before referral. 

Instead  of  these  'deference'  judgments  with  very  general  answers  that 
completely defer to the national court on the point of law, the interviewed 
judges preferred so-called 'outcome' judgments, as they give a very specific 
answer  that  leaves  no  margin  for  manoeuvre  for  the  national  court.172  This 
goes contrary to the argument in the literature that national courts actually 
do  not  like  CJEU  judgments  that  are  too  'interventionist',  because  judges 
perceive  such  'excessive  intervention'  as  an  usurpation  of  their  own 
jurisdiction  or  as  infantilisation  of  their  own  role.173  In  fact,  the  interviews 
provide  very  little  support  for  the  argument  that  national  courts  disfavour 
'interventionist' judgments. Only one judge was critical about a very detailed 
CJEU judgment that closely interpreted national law, but this judgment was 
outside  the  field  of  migration.174  Judges  opted  for  the  contrary  view  and 
expressed  their  content  with  CJEU  rulings  that  almost  solved  the  case  at 
hand. One example is K. and A. about the requirement for family members of 
a third country to pass a civic integration exam. The CJEU went into great 
detail in interpreting Dutch law and by hinting at a breach of EU law. It left 
little room for manoeuvre to the Council of State because it held itself that 
the requirement and the high fees make it impossible or excessively difficult 
to  exercise  the  right  to  family  reunification.175  Judges  did  not  consider  the 
approach of the CJEU problematic, but valued the clear directions offered.  

171  Joined cases C-148/13 until C-150/13 A., B., C. EU:C:2014:2406. 
172  Tridimas (n 6). 
173  Gareth  Davies,  'Abstractness  and  concreteness  in  the  preliminary  reference 
procedure: implications for the division of powers and effective market regulation', 
in Niamh N Shuibne (ed),  Regulating the Internal Market (Edward Elgar 2006) 210, 
232;  Jan  Komárek,  'In  the  Court(s)  we  trust?  On  the  need  for  hierarchy  and 
differentiation in the preliminary ruling procedure' (2007) 32 European Law Review 
467; Tridimas (n 6) 754; De la Mare and Donnelly (n 6) 391. 

174  Case C-137/09 Josemans EU:C:2010:774. 
175  Case C-153/14 K. and A. EU:C:2015:453. 

 
                                                 
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In the exceptional case that the CJEU does not answer the question, courts 
feel  sometimes  compelled  to  send  the  question  back  again.  The  Tribunal 
considered this option after the CJEU judgment in Akdas in 2011 concerning 
the  exportability  of  social  security  allowances  for  migrant  workers  from 
Turkey, because the ruling was unclear in several respects.176 It was eventually 
decided not to resubmit the same case, but the Tribunal asked new questions 
about the same issue in DemirciI, where the Turkish workers had, unlike in 
Akdas, acquired the Dutch nationality.177 In addition, judges also considered 
it  bothersome  when  the  CJEU  offers  the  impression  that  it  does  not  take 
certain  issues  that  are  considered  to  be  important  in  the  Netherlands 
seriously.178 The same holds true for the CJEU going into another direction 
than anticipated by the referring court. This in itself is not a problem but can 
become one if the CJEU ignores the reasoning or the suggested answer of the 
referring court and/or does not provide sufficient arguments for this different 
interpretation. The only case that falls into this category is  Unal about the 
withdrawal  of  the  residence  permit  of  a  Turkish  worker  with  retroactive 
effect.179 

3. Judges' (Dis)Satisfaction with their Interaction with the CJEU 

In addition to criticising particular CJEU judgments, some judges were also 
critical about the CJEU more generally and noted the absence of a genuine 
dialogue  with  the  CJEU.180  Some  judges  observed  in  this  context  that  the 
CJEU sometimes presents itself as a 'know-it-all' who is only communicating 

176  Case C-485/07 Akdas EU:C:2011:346. 
177  Case C-171/13 Demirci EU:C:2015:8. 
178  Interviews 10, 12, 89, 91. 
179  In addition, the Council of State explicitly held that there was no fraud, but that did 
not  prevent  the  CJEU  from  dealing  with  this  matter.  Case  C-187/10  Unal 
EU:C:2011:623, paras. 45-48. 

180 Several judges spoke about a 'black box' and the fact that the referring court does not 
play a role in the period of 1.5 years during which the case is considered by the CJEU, 
because it can, for example, not express its opinion on the submissions of the parties 
and/or  interventions  of  the  Commission  and  Member  States.  Others  who  do  not 
necessarily have the required expertise are involved to a greater extent. Interviews 
10, 24, 44, 66, 81, 89, 91.  

                                                 
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The Preliminary Reference Dance 

147 

in one direction.181 One judge, for example, held that he/she got the feeling 
during a visit in Luxembourg that the attitude of CJEU judges was: 'you come 
to us, we determine the rules'.182 Another judge noted the defensive reaction 
of CJEU judges when he/she raised shortcomings in the CJEU's case law.183 
Other  judges  mentioned  an  ivory  tower  mentality  and  even  wondered 
whether CJEU judges are sufficiently in touch with the society at large. This 
was  because  the  CJEU,  in  the  national  judges'  view,  paid  insufficient 
attention to societal concerns and questions related to the feasibility of the 
implementation  of  CJEU  judgments,  especially  in  the  area  of  migration.184 
Some judges also pointed to the translation of CJEU judgments in Dutch that 
they considered not always suitable because this is primarily carried out by 
Flemish professional translators.185  

The earlier mentioned difference between career judges and judges with an 
academic, governmental or EU law background also plays a role with respect 
to  the  perception  of  the  (interaction  with  the)  CJEU.  More  EU-oriented 
judges have a relatively better understanding of the difficult legal and political 
context  that  the  CJEU  is  working  in  and  the  fact  that  it  has  to  take  into 
account 28 different legal systems. They are also more aware of the fact that 
the  CJEU  has  considerably  reduced  the  average  time  to  decide  on  the 
preliminary references in the last twenty years.186 Some noted that colleagues 
with less direct EU-law experience complain more frequently about the long 
delay. 187 In addition, those who are less enthusiastic about referring are more 
critical  about  the  CJEU  judgments;  either  the  CJEU  limits  the  room  for 

181  Interviews 18, 44, 89.  
182  Interviews 44. 
183  Interviews 12. 
184  Interviews 72, 89. 
185  Interviews  24,  43,  81,  89.  One  example  outside  the  field  of  migration  is  the  social 
security case Franzen where the reference to 'onvermindend' ('leaving aside') should 
have been 'met uitzondering van' ('with the exception of') in the following statement: 
'Consequently, leaving aside the exclusion provided for in Article 6a(b) of the AKW 
and  the  AOW,  which  aims  to  transpose  the  single  State  principle  into  national 
legislation, the mere fact of residence in the Netherlands is sufficient for entitlement 
to child benefits.' Case C-382/13 Franzen EU:C:2015:261. 

186  Interviews 18, 39, 43, 44, 91. 
187  Interviews 10, 89. 

 
                                                 
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manoeuvre of the national judge too much, or it gives too limited direction.188 
The interviewed lower court judges seemed on average more positive about 
the CJEU case law, especially the judge who argued in line with the leapfrog 
argument and clearly perceived the CJEU as an 'ally'. 

4. The Referring Court's Follow-up 

The dissatisfaction with some CJEU judgments and the interaction with the 
CJEU  has  not  affected  the  national  judges'  willingness  to  act  upon  the 
requested  CJEU  rulings.  Both  the  legal  analysis  and  the  interviews  did  not 
find support for the earlier mentioned accounts in the literature that national 
courts do not always comply with the CJEU. No follow-up judgments were 
found  where  the  referring  court  went  into  a  different  direction  than 
suggested  by  the  CJEU.  During  the  interviews  no  such  instances  were 
mentioned, even when the CJEU required courts to alter their jurisprudence. 
In  the  area  of  migration  and  asylum  law,  courts  have  generally  opted  for  a 
minimalist reading of CJEU judgments in order to avoid extend the rights of 
the asylum seeker too much.189 

The interviewed judges presented the follow-up to CJEU judgments almost 
as an automatic mechanism even when this meant that they had to change 
their own case law. Interviewed judges considered changing their case law to 
be 'part of the game'. They noted that when the CJEU rules in a certain way, 
'that is just the way it is'. The court is simply obliged to comply with the CJEU 
judgment.190  Judges  even  considered  it  more  bothersome  when  the  CJEU 
does not give an answer than when the CJEU gives a rap over the knuckles of 
the referring court in a clear and insightful way.191 Examples that were also 
mentioned  in  interviews  include  Zh  and  O,  where  the  CJEU  required  an 
individual  assessment  of  the  risk  to  public  security  or  national  security  for 
third country nationals and EU citizens alike, contrary to what the Council 

188  Interviewees primarily noted this about other judges. Interviews 10, 39, 44. 
189  One example is the broadly formulated (or vague) judgment of Elgafaji on subsidiary 
asylum protection which was interpreted in a restrictive way by the Council of State 
so that it only applied to a very limited number of situations. Hoevenaars (n 153) 213. 

190 Interviews 18, 72, 89, 91; Sevenster & Wissels (n 33) 93. 
191  Interviews 12, 18, 72, 91. 

                                                 
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of  State  initially  thought.192  The  Council  did  not  show  any  difficulty  in 
implementing this assessment in its follow-up judgment.193 The Council also 
rather easily changed its practice after it was warned by the CJEU in J.N. that 
the Council's more fundamental-rights-friendly approach was not in line with 
the principle of the Reception Conditions Directive that requires a removal 
to be carried out as soon as possible.194 

V. FEEDBACK LOOPS?  

The third question of this article is whether there is a relationship between 
the  national  judges'  perception  of  their  interaction  with  the  CJEU  and  its 
answers (question 2) and their willingness to refer cases in the future (question 
1).  Even  though  judges  were  critical  about  the  CJEU  or  some  CJEU 
judgments, this has not affected them to such an extent that they became less 
inclined about referring future cases. This once again shows the pragmatism 
on the part of judges. 

Judges hardly take their previous experiences into account when making the 
calculation of referral, besides for two exceptions showing that they take into 
consideration  the  expected  answer  of  the  CJEU.  Firstly,  it  is  not  always 
considered useful and time efficient to refer when there is the perception that 
the  CJEU  merely  gives  very  general,  already-known  criteria  (so-called 
'deference cases'), and/or leaves the assessment entirely to the referring court 
(see section IV.2).177 Secondly, when making a decision (not) to refer, judges 
also consider whether it is possible to clearly explain the legal problem within 
the maximum of 20 pages for the order of reference to judges who are not 
familiar with the legal system.195 It could also happen that the details of the 

192  Case C-554/13 Zh. and O. EU:C:2015:377. 
193  Interviews 10, 89. ABRvS 20 November 2015 NL:RVS:2015:3579, para. 7. 
194  Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 
laying down standards for the reception of  applicants for international protection 
[2013]  OJ  L180/96.  The  Council  of  State  held  that  the  introduction  of  an  asylum 
application by a person who is subject to a return decision automatically causes all 
return  decisions  that  may  previously  have  been  adopted  in  the  context  of  that 
procedure  to  lapse.  Case  C-601/15 PPU  J.N.  EU:C:2016:84,  paras. 75-76;  ABRvS 8 
April 2016 NL:RVS:2016:959, para. 3.2. 

195  Interviews 10, 18. 

 
                                                 
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Dutch legal system are lost in translation to French, the working language of 
the CJEU.196 These considerations played a role in the earlier discussed cases 
about the intensity of  judicial review of the administration's assessment of 
the credibility of the asylum claim.197 The idea was that it would be difficult 
to have the CJEU rule on this issue related to a matter of principle, namely 
the relationship between the judiciary and the administration. Additionally, 
interviewees considered that there are notable differences in opinions as to 
the intensity of review within the Netherlands, let alone in the EU with 28 
different legal systems. Likewise, a lower court judge argued that a reference 
to the CJEU was in principle possible in a case in which an asylum seeker from 
Afghanistan sought subsidiary protection on the basis of art. 15, sub c, of the 
Qualification  Directive  because  of  a  serious  and  individual  threat  in 
in  situations  of 
Afghanistan 
international or internal armed conflict'.198 The judge had to grapple with the 
question  about  the  required  level  of  violence  necessary  to  establish  such 
protection.  He/she  considered,  however,  that  this  question  does  not  lend 
itself to be referred to the CJEU because it would be nearly impossible for the 
CJEU to come up with concrete and helpful guidelines.199 The expectation 
was that a referral would only lead to a deference case not worth the burden 
of the delay in this case. 

indiscriminate  violence 

'by  reason  of 

This  relatively short explorative  analysis of  the third question on feedback 
loops  raises  several  questions  that  would  be  worth  exploring  in  further 
research.  One  pertinent  question  is,  for  example,  to  what  extent  one  can 
speak of feedback loops with respect to the great majority of judges that have 
never  referred  or  referred  only  once  or  twice?  One  might  also  wonder,  do 
feedback loops play a more important role in EU Member States in which 
courts, and especially  constitutional courts, tend to be more critical of the 

196  Interview 10. 
197  Interviews 10, 18.  
198  Directive 2011/95/EU of the European Parliament and of the Council of 13 December 
2011 on standards for the qualification of third-country nationals or stateless persons 
as beneficiaries of international protection, for a uniform status for refugees or for 
persons  eligible  for  subsidiary  protection,  and  for  the  content  of  the  protection 
granted [2011] OJ L337/9. 

199  Rb.  3  March  2017  NL:RBDHA:2017:3443,  para.  5;  Rb.  16  May  2017 

NL:RBDHA:2017:5164. 

                                                 
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CJEU and CJEU judgments? In addition, which factors affect feedback loops 
more: primarily CJEU related factors (question 2) or the motives and attitude 
of judges towards referral (question 1)? It could be that judges and courts that 
have  been  more  critical  towards  the  CJEU  and  EU  law  from  the  outset  also 
perceive the CJEU in a more critical way than Dutch courts and judges do. 
The  implication  of  this  is  while  looking  at  roughly  the  same  glass,  more 
critical courts will describe the glass as half empty, while more positive courts 
will perceive the glass as half full. 

Answering these questions requires a broader comparative research project 
on a considerable number of EU Member States, possibly also examining the 
interaction between CJEU and national courts over a longer period of time. 
If  a  great  variance  in  the  prevalence  of  feedback  loops  across  EU  Member 
States is found this could perhaps mean that the (prefixed) attitudes of judges 
are more important than CJEU related factors. It might even be so that those 
attitudes  are  hardly  affected  by  the  way  in  which  the  CJEU  operates  and 
handles requests for preliminary rulings. This also implies that the CJEU has 
limited  control  over  and  possibilities  to  change  the  way  in  which  national 
courts engage with it. In contrast, if CJEU related factors matter more, this 
could mean that the CJEU can better control and change its perception by 
national  courts.  This  also  suggests  that  it  is  worthwhile  exploring  whether 
and  how  the  preliminary  ruling  procedure  needs  to  be  reformed  to  ensure 
continuing engagement of national courts.  

VI. CONCLUSION 

This article examined two aspects of the referral procedure: the motives to 
refer and the national judges' perception of the CJEU judgments, and their 
ability  to  solve  the  national  dispute  on  the  basis  of  the  CJEU  judgments. 
With respect to the motives to refer, this article examined several theoretical 
assumptions and empirical claims put forward in the existing literature (see 
Table 9 for an overview). This article showed that judges mainly operate in a 
pragmatic  way  and  predominantly 
include  pragmatic  and  practical 
considerations in their decision (not) to refer, such as the consequences of 
referring in terms of delays or the importance of the issue at stake. Only a 
limited number of references were made by lower asylum courts, to 'leapfrog' 
the national judicial hierarchy and challenge the more restrictive approach of 

 
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the supreme administrative courts. Most lower court judges do not support 
the leapfrog argument. Even less cases were referred to get an authoritative 
pronouncement ('sword') on the existence of a breach of EU law by a national 
measure  that  would  subsequently  compel  the  government  to  change 
legislation. 

Table 9: Overview of findings with respect to motives (not) to refer 

Motives (not) to refer 

Prevalence 
(Absent, very low, low, moderate, 
high) 
Low 

Politico-strategic reasons 
Judicial empowerment ('sword')  Low (in some referred cases) 
Sustained resistance ('shield') 
Bureaucratic politics 
('leapfrog') 
Non-strategic reasons 
Legal formalism 
(Compliance pull) 
Pragmatism 

High 
Very low 

Absent 
Moderate (in some referred cases) 

High (in all cases, both referred and 
non-referred) 
High  

Personal/ psychological  

Institutional  
Request of the parties 

Moderate 
Low (in some referred cases) 

As to the second follow-up question, this study shows that the referring court 
implements  the  requested  CJEU  judgment  fully  and  automatically.  This  is 
the case despite the fact that most interviewed judges were not necessarily 
satisfied with all CJEU judgments, the procedure before, or the dialogue with 
the CJEU. The judges' own personal background and institutional position 
also  plays  an  important  role  in  their  perception  of  the  CJEU's  case  law. 
National court judges seem to like strong guidance by the CJEU providing 
clear  solutions  for  the  case  at  hand.  This  finding  contrasts  with  prevailing 
assumptions about the relationship between CJEU and national courts that 
consist in criticising 'interventionist' CJEU judgments. With respect to the 
third  question  about  feedback  loops,  this  study  demonstrates  that  the 
willingness of judges to refer is not affected by their previous experiences and 
dissatisfaction. The national judges' responses to these two questions once 

 
 
 
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more  bear  witness  to  their  pragmatic  attitude  towards  the  preliminary 
reference procedure. 

In sum, the interaction between the CJEU and Dutch courts in the field of 
migration  does  not  give  rise  to  concerns  about  the  functioning  of  the 
preliminary  ruling  procedure.  What  does  this  finding  tell  us  about  the 
broader  picture?  More  specifically,  is  there  cause  for  concern  given  the 
allegedly  growing  number  of  integration-sceptical  national  judgments  as 
mentioned  in  the  introduction?  Even  though  the  scope  of  this  article  is 
limited, focusing on Dutch migration cases for a limited period of time, it is 
still possible to offer some meaningful reflections. It is safe to say that the 
literature  tends  to  overemphasise  a  few  high  profile  cases  over  the  large 
majority of 'often extremely boring' rulings which are neatly implemented.200 
The  procedure  functions  well  in  the  great  majority  of  cases.201  This  also 
suggests that the growing pessimism in the literature could be the result of 
the  fact  that  there  are  more  high  profile  CJEU  judgments  which  are 
extensively discussed and criticised in the popular press and in the academic 
literature. The seemingly growing criticism is also a natural development that 
could simply be the result of the growing competences of the EU in fields of 
law,  which  have  traditionally  been  the  sole  domain  of  EU  Member  States, 
such as criminal law. In addition, the legally binding effect of the EU Charter 
of Fundamental Rights in 2009 also means that the CJEU is operating in an 
area  that  has  long  been  dominated  by  generally  more  EU  sceptic 
constitutional  courts.  These  two  developments  have  consequently  stirred 
those  constitutional  courts  into  action,  which  is  not  necessarily  a  positive 
sign of their willingness to engage with EU law. Referring to the CJEU is also 
a way for such courts to challenge the authority and legitimacy of the CJEU. 
This is a source of concern that should be examined at greater depth, also in 
the  light  of  the  unresolved  questions  formulated  earlier  in  relation  to  the 
feedback loops. At the same time, we should not forget that 'hard cases', such 
as Ajos, Gauweiler or Taricco receive a disproportionate amount of attention, 

200 De Werd (n 5) 156. 
201  This was also the outcome of the ACA Europe Seminar on the preliminary ruling 
procedure in The Hague on 7 November 2016. See www.aca-europe.eu/index.php/ 
en/seminars/511-seminar-in-the-hague-on-7-november-2016,  last  accessed  31  July 
2018. 

 
                                                 
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often to the detriment of the great majority of cases in which the preliminary 
ruling procedure functions well.

THE APPLICATION OF NATIONAL LAW BY THE EUROPEAN CENTRAL 
BANK WITHIN THE EU BANKING UNION'S SINGLE SUPERVISORY 
MECHANISM: A NEW MODE OF EUROPEAN INTEGRATION? 

Lena Boucon* and Daniela Jaros† 

The Single Supervisory Mechanism (SSM) contains a new and unprecedented feature 
in  EU  law:  its  founding  regulation  enables  a  European  institution  (the  ECB)  to 
directly  apply  national  law.  This  paper  examines  the  theoretical  and  practical 
implications of this feature of the SSM through the lens of European integration. It 
highlights  the  ways  in  which  the  ECB  may  harmonize  national  laws,  why 
harmonized  administrative  procedural  rules  are  necessary  in  this  field  and  what 
remedies would be available should a decision of a European institution taken on the 
basis  of  national  law  be  challenged  before  the  CJEU. The  paper  concludes  that  the 
SSM may be described as a hybrid mode of European integration since it departs from 
the traditional models of the execution of EU law, and challenges some of the founding 
principles of EU law, such as the autonomy of the EU legal order and the principle of 
non-discrimination. 

Keywords:  Single  Supervisory  Mechanism  (SSM),  European  integration, 
autonomy of the EU legal order, principle of non-discrimination, European 
Central Bank, direct application, administrative procedural law, remedies 

TABLE OF CONTENTS 
I. INTRODUCTION ........................................................................................... 156 
II. SURVEYING THE NOVEL FEATURES OF THE SSM .................................. 162 
III. ISSUES ARISING FROM THE DIRECT APPLICATION OF NATIONAL LAW 
BY THE ECB...................................................................................................... 166 

*  Lena Boucon, EUI alumna, is an associate with the Paris Office of Orrick, Herrington 
& Sutcliffe (Europe) LLP. The views presented in this paper are the author's personal 
opinion  and  must  not  be  read  as  reflecting  the  positions  of  Orrick,  Herrington  & 
Sutcliffe (Europe) LLP. 

†  Daniela Jaros, EUI alumna, is an employee of the Banking Supervision Department 
of  the  Austrian  Financial  Market  Authority  (FMA).  The  views  presented  in  this 
paper  are  the  author's  personal  opinion  and  must  not  be  read  as  reflecting  the 
positions of the FMA. 

 
 
 
                                                 
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1. National Provisions Qualifying for Direct Application by the ECB under Article 

4(3) SSM-R ............................................................................................................ 168 
2. Uniform Application of Implemented Directives Across the SSM ..................... 170 
3. Identifying Applicable Procedural Rules in Absence of a Common European 

Administrative Procedural Law ............................................................................ 175 
4. Remedies .................................................................................................................. 177 
IV. THE SSM AS A HYBRID MODE OF EUROPEAN INTEGRATION ............ 181 
1. The SSM as a Hybrid Mode of Execution of EU law ........................................... 181 
2. The SSM in Light of the Founding Principles of EU law .................................... 182 
A. The Autonomy of the EU Legal Order ............................................................... 183 

B. The Principle of Non-Discrimination ............................................................... 184 
3 The SSM and the Role of EU Institutions ............................................................. 184 
V. CONCLUSION .............................................................................................. 186 

I. INTRODUCTION

European  integration  is commonly seen as the deepening of links between 
the European Union (hereafter 'EU' or 'Union') and its Member States, on 
the one hand, and the links between individual Member States, on the other 
hand. This is usually achieved by enhancing the powers of the Union over the 
powers of the individual Member States.  

Enhancing  European  integration  is  considered  necessary  in  certain  areas 
because the EU is seen as the most appropriate level to deal with issues that 
go beyond the national sphere. From a legal perspective, integration is subject 
to  three  cornerstone  constitutional  principles  of  the  EU  legal  order:  the 
conferral  principle,1  the  principle  of  subsidiarity,2  and  the  principle  of 

1  Under  the  conferral  principle,  the  Union  shall  act  only  within  the  limits  of  the 
competences  conferred  upon  it  the  Member  States  (Article  5(2)  Treaty  of  the 
European Union (TEU). 

2  Under  the  principle  of  subsidiarity,  in  areas  which  do  not  fall  within  its  exclusive 
competence, the Union shall act only if and in so far as the objectives of the proposed 
action cannot be sufficiently achieved by the Member States […] but can rather, by 
reason of the scale or effects of the proposed action, be better achieved at Union level 
(Article 5(3) TEU). 

 
 
                                                 
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Application of National Law by the ECB 

157 

proportionality.3  The  idea  of  creating  a  European  Banking  Union  was  no 
exception to this concept of European integration since it seeks to give the 
European Central Bank (ECB) certain supervisory tasks over the EU financial 
system.  The  global  financial  crisis  that  hit  the  Union  and  in  particular  the 
Eurozone  in  the  late  2000s  exposed  the  deficiencies  and  systemic  risks 
arising  from  the  existing  regulatory  and  supervisory  architecture.  A 
consensus was reached that the banking sector could no longer be governed 
exclusively at the national level. The way in which banking supervision was to 
be developed at the European level included several new features.  

In the aftermath of the Eurozone crisis, the European Banking Union was set 
up based on three pillars. The first two, the Single Supervisory Mechanism 
(SSM)4 and Single Resolution Mechanism,5 were designed to ensure that all 
European banks would be subject to uniform supervision, as well as to ensure 
orderly  bank  resolutions  when  necessary.  The  third  pillar,  a  common 
European Deposit Insurance Scheme, is still awaiting completion.6 

3  Under the principle of proportionality, the content and form of Union action shall 
not  exceed  what  is  necessary  to  achieve  the  objectives  of  the  Treaty  (Article  5(4) 
TEU). 

4  Council Regulation (EU) 1024/2013 of 15 October 2013 conferring specific tasks on 
the European Central Bank concerning policies relating to the prudential supervision 
of  credit  institutions  [2013]  OJ  L287/63  (hereafter  'SSM-R')  and  Regulation  (EU) 
468/2014 of the European Central Bank of 16 April 2014 establishing the framework 
for  cooperation  within  the  Single  Supervisory  Mechanism  between  the  European 
Central  Bank  and  national  competent  authorities  and  with  national  designated 
authorities (SSM Framework Regulation) [2014] OJ L141/1 (hereafter 'SSM-FR'). 
5  Regulation (EU) 806/2014 of the European Parliament and the Council of 15 July 2014 
establishing  uniform  rules  and  a  uniform  procedure  for  the  resolution  of  credit 
institutions  and  certain  investment  firms  in  the  framework  of  a  Single  Resolution 
Mechanism  and  a  Single  Resolution  Fund  and  amending  Regulation  (EU)  No 
1093/2010 [2014] OJ 225/1 with its implementing and delegated acts (the regulation is 
currently under review). For an overview, see also Karl-Philipp Wojcik 'Bail-in the 
Banking Union' (2016) 53 Common Market Law Review 91, 100-106.  

6  Directive 2014/49/EU of the European Parliament and the Council of 16 April 2016 
on Deposit Guarantee Schemes |2014] OJ L 173/149; European Commission 'Effects 
Analysis 
(2016) 
<https://ec.europa.eu/info/sites/info/files/161011-edis-effect-analysis_en.pdf> 
accessed 9 March 2018. 

European  Deposit 

Insurance 

Scheme', 

the 

on 

 
 
                                                 
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Prior to the creation of the European Banking Union, the integration of the 
European financial system took place in four steps.7 A process of 'integration 
through harmonisation' occurred from 1973 to 1984, based on the principle of 
the  full  harmonisation  of  national  rules  while  maintaining  home-country 
control  and  the  principle  of  non-discrimination.  Given  its  rather  limited 
success,8 a shift took place from 1985 through 1998. Minimum harmonisation 
replaced full harmonisation. This shift notably led to the provision of a 'single 
passport' to financial institutions for the provision of services throughout the 
then Community.9 As noted by Pedro Gustavo Teixeira, Director General of 
the  Secretariat  and  Secretary  to  the  Decision-making  Bodies  of  the  ECB, 
Member States were required to 'adapt their laws and regulations' but only to 
meet minimum levels of harmonization in an effort to prevent a 'race to the 
bottom'.10 A process of integration through governance followed from 1999 
through 2007, characterized by the introduction of a common currency, the 
Euro, and the transfer of monetary policy from national central banks to the 
ECB  in  accordance  with  the  Financial  Services  Action  Plan  and  the 
Lamfalussy framework of governance.  

The global financial crisis eventually hit Europe, where the financial crisis was 
followed  by  the  Eurozone  crisis.  Therefore,  from  2008  through  2012, 

7  Pedro  Gustavo  Teixeira,  'Europeanising  prudential  banking  supervision  –  Legal 
foundations  and  implications  for  European  integration'  (2014)  2/14  Arena  Report 
Series 
<http://www.sv.uio.no/arena/english/research/publications/arena-
reports/2014/report-2-14.pdf#page=537> accessed 3 January 2018, 532. 

8  See  European  Commission,  'Completing  the  Internal  Market'  (1985) White  Paper 

COM(85)310 
<http://europa.eu/documents/comm/white_papers/pdf/com1985_0310_f_en.pdf> 
accessed  11  March  2018.  For  an  account  of  the  different  approaches  towards 
harmonisation, see, for instance, Jacques Pelkmans, 'The new approach to technical 
harmonization and standardization' (1987) 25/3 Journal of Common Market Studies 249. 
9  See, in particular, Second Council Directive 89/646/EEC of 15 December 1989 on the 
Coordination  of  Laws,  Regulations  and  Administrative  Provisions  Relating  to  the 
Taking  Up  and  Pursuit  of  the  Business  of  Credit  Institutions  and  Amending 
Directive 77/780/EEC, OJ L 386, 30 December 1989. 

10  Pedro  Gustavo  Teixeira,  'Europeanising  prudential  banking  supervision  –  Legal 
foundations  and  implications  for  European  integration'  (2014)  2/14  Arena  Report 
Series 
<http://www.sv.uio.no/arena/english/research/publications/arena-reports/ 
2014/report-2-14.pdf#page=537> accessed 3 January 2018, at 545. 

 
 
                                                 
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Application of National Law by the ECB 

159 

Member  States  engaged  in  the  fourth  integration  phase  that  may  be 
described  as  'integration  through  crisis',  during  which  they  implemented 
unilateral  and  intergovernmental  actions11  primarily  aimed  at  safeguarding 
their own interests at the expense of the 'EU common interest'. During this 
period,  while  the  making  of  banking  regulation  was  divided  between  the 
European and the national levels of governance, the organisation of banking 
supervision, the enforcement of regulatory rules and the resolution of banks 
resided exclusively within the ambit of the Member States. This institutional 
framework  corresponded  to  the  traditional  form  of  EU  integration, 
described as an indirect or decentralised enforcement of EU law. On the one 
hand,  rules  for  certain  substantive  issues  were  adopted  at  the  EU  level, 
subject to the principles of subsidiarity and proportionality, i.e. the EU would 
legislate  in  these  fields  only  to  the  extent  necessary.  On  the  other  hand, 
Member States were the primary enforcers of such rules through their own 
national supervisory frameworks. They also retained the power to legislate as 
long as a given action was not viewed as being better achieved at EU level. 

This paper aims to analyse the rules enshrined in the SSM Regulation ('SSM-
R') and their practical legal implications in order to show to what extent they 
differ  from  traditional  modes  of  European  integration.  In  other  words,  its 
purpose is to determine whether the SSM's features make it an 'original' or 
'new'  mode  of  European  integration,  thus  breaking  with  the  traditional 
modes of European legal integration. 

Admittedly, the concept of European legal integration is a rather loose one.12 
Generally  speaking,  it  is  viewed  as  referring  to  a  process  of  integration 
through law: while the law is a product of the European Union, the European 

11  Kaarlo Tuori and Klaus Tuori, The Eurozone Crisis (Cambridge University Press 2014); 
Thomas Beukers, Claire Kilpatrick and Bruno de Witte (eds),  Constitutional Change 
through Euro-Crisis-Law (Cambridge University Press 2017); on the positive aspect of 
intergovernmentalism see Daniela Jaros, '"The Eurozone Crisis" – A Book Debate In 
Defence  of  "Good  Intergovernmentalism"'  (Verfassungsblog,  12  April  2014) 
<https://verfassungsblog.de/in-defence-of-good-intergovernmentalism-2/>  accessed 
9 March 2018;  

12  Hanne Petersen, Anne-Lise. Kjaer, Helle Krunke & Mikael Rask Madsen, 'General 
introduction:  Paradoxes  of  European  legal  integration'  in  Hanne  Petersen,  Anne-
Lise. Kjaer,  Helle  Krunke  & Mikael  Rask  Madsen (eds)  Paradoxes  of  European  legal 
integration (Routledge 2008). 

 
 
                                                 
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Union is also, to some extent, a creature of the law.13 For the purposes of this 
paper,  European  legal  integration  is  used  to  refer  to  the  process  through 
which  EU  law  gradually  penetrates  into  the  domestic  law  of  its  Member 
States,14 or the process according to which EU law 'behaves like an occupying 
authority  on  foreign  soil,  by  making  use  of  national  procedures  and  by 
mobilizing  state  organs  so  as  to  directly  incorporate  its  norms  with  the 
national jurisdiction of the EU states'.15 

By 'traditional mode of European integration', we refer to the ways in which 
EU law has penetrated the national legal orders so far. This pertains partly to 
the legal tools used by the EU institutions. Basic principles are entrenched in 
the EU's constitutive treaties, such as the principles of conferral, subsidiarity, 
proportionality,  sincere  cooperation,  or  equal  treatment  and  non-
discrimination.  In  addition,  the  European  legislator  has  at  its  disposal 
different  acts  of  secondary  legislation,  namely  regulations,  directives, 
individual acts or acts of soft law. The Court of Justice of the European Union 
(CJEU)  has  recognized  additional  fundamental  concepts,  namely  the 
principles of direct effect,16 and of primacy of EU law.17 It has also developed 
defining  principles  of  interpretation  with  the  aim  of  ensuring  consistent 
application of EU law across the Member States, namely the principle of the 
autonomy of the EU legal order and of effectiveness of EU law.  

In  addition,  EU  law  has  traditionally  penetrated  the  national  orders 
according to two main patterns. First, the decentralized (or indirect) model 
of execution of EU law, which is by far the most common within the EU legal 
order,  implies  that  while  substantive  law-making  takes  place  at  EU  level, 
Member States are entrusted with the task of applying such rules according 
to their own procedures and through the national state organs. It is in this 

13  See Mauro Cappelletti, Monica Seccombe & Joseph Weiler (eds), Integration through 
law:  Europe  and  the  American  federal  experience,  Vol.  1:  Methods,  tools  and  institutions 
(Walter de Gruyter and Co. 1986). 

14  Anne-Marie Burley & Walter Mattli, 'Europe before the Court: A political theory of 

legal integration' (1993) 47/1 International Organization 43.  

15  Loïc  Azoulai,  'The  force  and  forms  of  European  legal  integration'  (2011)  6  EUI 

Working Paper 1. 

16  Case 26/62 Van Gend en Loos EU:C:1963:1. 
17  Case 6/64 Costa c. ENEL EU:C:1964:66. 

 
 
                                                 
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Application of National Law by the ECB 

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context that the CJEU has recognized the principle of procedural autonomy 
of  the  Member  States.18  Second,  the  centralized  (or  direct)  model  of 
execution of EU law signifies that the EU institutions are responsible for the 
application, implementation and enforcement of EU rules. A typical example 
is competition law, for which the European Commission may impose fines 
and other sanctions on undertakings infringing the competition provisions of 
the Treaty on the Functioning of the European Union (TFEU). 

Where does the SSM lie against this background? The SSM is intended to 
create  'an  efficient  and  effective  framework  for  the  exercise  of  specific 
supervisory  tasks  over  credit  institutions  by  a  Union  institution'  and  to 
ensure 
'the  consistent  application  of  the  single  rulebook  to  credit 
institutions'.19 The ECB is its cornerstone. In accordance with Article 127(6) 
TFEU and Article 4(1) and Article 5(2) of Regulation (EU) 1024/2013 (SSM-
R), almost  all prudential powers  over the Eurozone's largest banks  and the 
power to regulate market access with regard to all banks in the Eurozone have 
been transferred to the ECB. Moreover, pursuant to Article 6 SSM-R, powers 
of indirect oversight over national competent authorities with regard to their 
supervision of smaller banks in the Eurozone have also been assigned to the 
ECB. Against this background, the SSM comprises several peculiar features. 
Our  survey  of  these  features  will  demonstrate  how  and  why  the  SSM 
constitutes  a  new  mode  of  European  integration.  As  we  will  see,  the  SSM 
consists in a direct application by a European institution of national (rather 
than EU) law, thus breaking with the traditional ways in which EU law has so 
far penetrated the national legal systems (II). The paper then discusses the 
practical  implications  and  complexities  created  by  this  original  legal 

18  See,  for  instance,  Case  33/76    Rewe-Zentralfinanz  eG  and  Rewe  Zentral  AG  v. 
Landwirtschaftskammer  für  das  Saarland  EU:C:1976:188,  5:  '[…]  in  the  absence  of 
Community rules on this subject, it is for the domestic legal system of each Member 
State  to  designate  the  courts  having  jurisdiction  and  to  determine  the  procedural 
conditions governing actions at law intended to ensure the protection of the rights 
which citizens have from the direct effect of Community law,  it being understood 
that such conditions cannot be less favourable than those relating to similar actions 
of a domestic nature […] the position would be different only if the conditions and 
time-limits made it impossible in practice to exercise the rights which the national 
courts are obliged to protect'. 

19  Recital 87 SSM-R. 

 
 
                                                 
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framework  (III)  before  looking  at  it  in  light  of  the  theory  of  European 
integration (IV). 

II. SURVEYING THE NOVEL FEATURES OF THE SSM 

The SSM is based on a fundamental distinction between banking regulation 
and banking supervision. While the former mostly refers to prudential rules20 
applicable to credit institutions, the latter relates to the enforcement of those 
prudential  rules  and  the  structure  of  the  authorities  responsible  for 
enforcement.  

Systemic  risks  inherent  in  the  previous  system  of  national  supervision  of 
credit institutions operating within an integrated European market were very 
clearly  exposed  during  the  Eurozone  crisis.  The  EU  and,  in  particular,  the 
Member States of the Eurozone realized that the discrepancy between the 
different  supervision  of  credit  institutions  across  the  Eurozone  by  the 
national  supervisors  gave  rise  to  profound  deficiencies  and  put  the 
sustainability of the whole system at risk. Just as the creation of the monetary 
union was intended to solve the 'impossible trinity'21 of fixed exchange rates, 
free movement of capital and autonomous monetary policy, the creation of 
the banking union was aimed at solving the 'financial trilemma'22 of financial 

20  'Prudential'  means  relevant  to  the  stability  of  the  financial  markets.  Typical 
'prudential  rules'  are  therefore  capital  or  liquidity  requirements  for  banks  or 
governance  requirements.  In  addition  to  'prudential  rules',  there  are  other  rules 
banks must comply with, such as, for example, rules related to consumer protection, 
which are not prudential as their primary objective differs from that of the stability 
of the financial markets (what may be best for the protection of consumer interests 
may not be best in terms of financial stability). In practice, of course, the distinction 
is not always clear-cut, given that overall compliance with non-prudential rules has an 
impact on compliance with prudential rules and vice-versa. 

21  Robert  A.  Mundell,  'Capital  Mobility  and  Stabilization  Policy  under  Fixed  and 
Flexible  Exchange  Rates'  (1963)  29  Canada  Journal  of  Economics  475;  Marcus  J. 
Fleming,  'Domestic  Financial  Policies  under  Fixed  and  under  Floating  Exchange 
Rates,' (1962) 9 IMF Staff Papers 369; Maurice Obstfeld, Jay Shambaugh and Alan 
Taylor  'The  Trilemma  in  History:  Tradeoffs  among  Exchange  Rates,  Monetary 
Policies, and Capital Mobility' (2005) 87 Review of Economics and Statistics 423-438. 
'The  Financial  Trilemma'  (2011)  Economics  Letters  111 
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1340395> accessed 3 May 2018. 

22  Dirk  Schoenmaker, 

 
 
                                                 
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Application of National Law by the ECB 

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stability,  national  financial  regulation  and  cross-border  banking  (financial 
integration).  In  order  to  safeguard  financial  stability  and  an  integrated 
banking  market,  Member  States  thus  decided  that  action  at  EU  level  was 
necessary, since only further integration of financial regulation across the EU 
could  address  the  many  challenges23  brought  about  by  the  Eurozone  crisis. 
Against  this  background,  the  SSM  was  conceived  and  the  SSM-R  and  the 
SSM-FR were adopted in 2013 and 2014 respectively. 

As  far  as  the  SSM-R  is  concerned,  its  recitals  stress  the  need  for  more 
European  integration  and  are  thus  in  line  with  the  traditional  méthode 
communautaire. The recitals also point to the fragmentation of the financial 
sector  and  the  threat  it  poses  to  other  EU  policies,  namely  the  single 
monetary policy and the internal market. This gives rise to a need to intensify 
the integration of banking supervision, which in turn will bolster the Union, 
restore financial stability, and ultimately lead to economic recovery.24 

As mentioned above, instead of harmonising national substantive prudential 
laws,25 the SSM-R focuses exclusively on the modes of supervision of credit 
institutions.  In  other  words,  it  does  not  focus  on  the  content  of  the  rules 
applicable to credit institutions, but on the interplay between supervisors, as 
well as the tasks and powers of the latter. Below (see Section III.1), we discuss 
how this plays out in practice and examine the extent to which the ECB does 
in fact act as a regulator, notwithstanding the supposed deference to national 
prudential rules, by virtue of its mandate.   

23  It should also be noted that participating in the Banking Union was made a condition 
for receiving loans from the European Stability Mechanism (ESM) that was set up as 
a result of crisis to provide emergency loans to Eurozone Member States that have 
(had) difficulties servicing their sovereign debt obligations. On the conditionality of 
the 'troika's' loans to Eurozone countries in distress, see also Tuori and Tuori (n 13).  
24  See, for instance, Recital 2 of the SSM-R, which provides that: 'The present financial 
and  economic  crisis  has  shown  that  the  integrity  of  the  single  currency  and  the 
internal  market  may  be  threatened  by  the  fragmentation  of  the  financial  sector.  It  is 
therefore essential to intensify the integration of banking supervision in order to bolster the 
Union, restore financial stability and lay the basis for economic recovery' [emphases 
added]. 

25  On the harmonisation of prudential rules, see below under 3.2. 

 
 
                                                 
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In  line  with  other  processes  that  aim  to  further  European  integration,  the 
SSM-R  centralises  banking  supervision  at  the  ECB.  Supervision  of  credit 
institutions, previously within the remit of national authorities, is  now the 
responsibility of the ECB. Given the limits of Article 127(6) TFEU,26 which 
only  provides  for  the  power  to  confer  'specific  tasks'  regarding  prudential 
supervision  to  the  ECB,  the  European  legislator  could  not  opt  for  a  total 
transfer  of  supervisory  tasks  to  the  ECB.  Instead,  it  has  set  up  a  complex 
supervisory architecture, involving both the European and the national levels. 
While the aim of the SSM-R is to centralise supervision at the ECB, the SSM 
creates  a  continuing  role  for  the  national  authorities,  relying  on  them  for 
expertise, implementation, and, at a more basic level, manpower.27 However, 
the  SSM-R  avoided  relying  on  clear-cut  criteria  to  divide  the  respective 
competences of the ECB and the national supervisors. Instead, the concept 
of 'significance' of credit institutions (Article 6(4) SSM-R)28 is at the heart of 
the  SSM-R:  the  ECB  is  now  the  sole  institution  responsible  for  the 
supervision of 'significant institutions', with further responsibility to devise 
the  so-called  'common  procedures'29  and  to  indirectly  supervise  'less 

26  Article  127(6)  TFEU  forms  the  legal  basis  of  the  SSM-R,  which  was  thus  adopted 
unanimously by the Member States. It provides that 'The Council, acting by means 
of regulations in accordance with a special legislative procedure, may unanimously, 
and  after  consulting  the  European  Parliament  and  the  European  Central  Bank, 
confer specific tasks upon the European Central Bank concerning policies relating to 
the prudential supervision of credit institutions and other financial institutions with 
the exception of insurance undertakings'. 

27  Gianni Lo Schiavo, 'The Single Supervisory Mechanism: Building a New Top-Down 
Cooperative  Supervisory  Governance  in  Europe'  in  Federico  Fabbrini  et  al.  (eds), 
What Form of Government for the European Union and the Eurozone? (Hart 2015). 

28  Significance is determined based on criteria set out in Article 6 (4) SSM-R, the list of 
supervised  credit  institutions  and  financial  holding  companies,  updated  in  2017,  is 
available at 
<https://www.bankingsupervision.europa.eu/ecb/pub/pdf/list_of_supervised_entitie
s_20160331.en.pdf?54830cfdd60d51025d0fd0716d4376e2> accessed 3 January 2018. 
29  'Common  procedures'  are:  Authorisation  of  credit  institutions  and  withdrawal  of 
authorisations  of  credit  institutions  (Article  4  (1)  (a)  SSM-R)  and  as  well  as  the 
assessment of notifications of the acquisition and disposal of qualifying holdings in 
credit institutions (Article 4 (1) (c) SSM-R). 

 
 
                                                 
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significant  institutions'.30  National  competent  authorities  retain  certain 
powers  with  regard  to  significant  institutions  (i.e.  anti-money-laundering) 
and the power to directly supervise less significant institutions. 

The SSM has been described as a 'unique and unprecedented juxtaposition of 
European and national competences', including: (i) exclusive competences of 
supervision  of  the  ECB;  (ii)  national  competences  of  supervision;  (iii) 
instruction/oversight competences of the ECB; and (iv) shared and parallel 
competences  among  the  ECB  and  national  supervisors.31  In  parallel  to  this 
division  of  competences,  the  SSM-R  has  also  introduced  an  'integrating' 
organizational  set-up  through  the  creation  of  so-called  Joint  Supervisory 
Teams  (JSTs).32  Supervisors  at  the  ECB  and  from  national  competent 
authorities work together on a daily basis in JSTs led by JST-coordinators at 
the ECB. European and national competences are thus deeply intertwined, 
even  though  the  ECB  has  the  final  say  about  the  qualification  of  a  credit 
institution. 

While  the  SSM-R  relies  on  a  dichotomy  between  banking  regulation  and 
banking supervision and primarily deals with the latter, it nonetheless does 
not ignore the former entirely. Instead, it deals with regulation in an original 
and somewhat troubling manner, since it relies, to an unprecedented extent, 
on national substantive laws. It does so according to three distinct schemes. 

Firstly,  Article  4(3)  SSM-R  expressly  provides  that  the  ECB  is  to  apply  'all 
relevant Union law' while carrying out the tasks conferred on it by the SSM-
R, which may imply applying national laws directly. This may occur in two 
situations. Where Union law is composed of Directives, the ECB is required 
to  apply  'the  national  legislation  transposing  those  Directives',  which  may 
thus differ from one Member State to another. Alternatively, where Union 
law is composed of Regulations and where such Regulations grant options for 
Member States, the ECB is equally required to apply 'the national legislation 
exercising  those  options',  which  similarly  is  likely  to  differ  across  the 
Member States. 

30  'Guide to Banking Supervision' (ECB) <https://www.bankingsupervision.europa.eu/ 
ecb/pub/pdf/ssmguidebankingsupervision201411.en.pdf> accessed 3 January 2018. 

31  Teixeira (n 9) at 554.  
32  Recital 79 of the SSM-R; Articles 3-6 SSM-FR. 

 
 
                                                 
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Secondly, Article 6(5)(a) SSM-R grants the ECB powers through which it shall 
instruct – through regulations, guidelines or general instructions – national 
regulators on how they are to perform their supervisory tasks33 and on how 
they are to adopt their supervisory decisions. In other words, even when it 
does not have an exclusive competence, the ECB has been granted the power 
to instruct national regulators on how to apply their respective national laws. 

Thirdly, under the third subparagraph of Article 9(1) SSM-R, when the ECB 
lacks certain powers to carry out the tasks conferred on it by the SSM-R, the 
ECB may instruct national regulators to make use of their powers 'under and 
in accordance with the conditions set out in national law'. In other words, the 
ECB may require national regulators to fill in when it is itself not entitled to 
intervene. 

Hence, for the first time in the history of EU integration, an EU institution 
must make direct use of national law while carrying out the tasks conferred 
on  it  by  EU  law.  The  following  sections  scrutinize  the  various  practical 
implications  of  the  aforementioned  provisions  and  show  how  these 
provisions  ultimately  create  what  can  be  described  as  a  new  form  of 
integration. 

III. ISSUES ARISING FROM THE DIRECT APPLICATION OF NATIONAL 
LAW BY THE ECB 

The  aforementioned  Articles  4(3),  6(5)(a)  and  9(1)  SSM-R  raise  difficult 
questions  about  the  delineation  of  competences  between  the  ECB  and 
national  competent  authorities,  on  the  one  hand,  and  the  extent  to  which 
national laws are applicable, on the other hand. A delineation of competences 
and a common understanding of the applicable law is, however, necessary to 
understand: (a) the degree to which integration is intended by the SSM-R and 
(b)  the  contexts  in  which  national  supervisors  (and  consequently  Member 
States)  remain  competent.  In  the  absence  of  clarity  on  the  distribution  of 
competences,  legal  certainty  and  foreseeability  are  undermined.  In  this 
regard, three types of problems can be identified. 

33  Excluding the authorisation of credit institutions, the withdrawal of authorisations 
of  credit  institutions  (Article  4(1)(a)),  and  the  assessment  of  notifications  of  the 
acquisition and disposal of qualifying holdings in credit institutions (Article 4 (1) (c)). 

 
 
                                                 
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First,  in  many  cases,  the  transposition  of  directives  is  deeply  embedded  in 
pre-existing national provisions, partly in order to take into account national 
legislative and regulatory specificities. From the perspective of EU law, the 
purpose of directives is to harmonize substantive rules and outcomes while 
leaving  it  to  Member  States  to  choose  the  means  for  achieving  this  goal.34 
Therefore,  it  is  often  not  easy  to  disentangle  a  national  provision  that 
corresponds  to  part  of  an  EU  directive  from  other  provisions  or  parts  of 
provisions that do not stem from EU law. However, this question must not 
be  confused  with  the  question  of  the  division  of  competences  between 
national authorities and the ECB.  

Second,  national  provisions  are  not  only  surrounded  by  other  provisions 
within  their  national  legal  settings  but  may  also  have  to  be  interpreted  or 
applied in a specific way due to domestic case-law, soft-law instruments  or 
administrative acts or practice. Can the ECB treat national legal provisions 
as  black  letter  law  that  it  can  interpret  autonomously,  disregarding  the 
national context of these provisions? The SSM-R leaves that question open.  

Third  (3.3.),  in  the  absence  of  a  harmonized  European  administrative 
procedural  law,  the  question  of  the  extent  to  which  the  ECB  is  bound  by 
procedural provisions that are part of national law arises. The SSM-R and the 
SSM-FR do contain a minimum of general procedural provisions. However, 
the  regulations  remain  silent  about  whether  national  administrative 
provisions  (e.g.  deadlines)  have  to  be  applied  in  addition  to  those  general 
provisions  and  about  what  happens  when  national  provisions  are  more 
specific  while  not  contradictory  to  those  general  provisions  set  in  the 
regulations.  

The following subsections explore these three problem areas, linking them to 
current case law pending before the CJEU and the ECB's initial positions on 
these  issues  to  date.  In  a  fourth  subsection  (III.4),  the  paper  looks  at  how 
these practical implications play out in the context of applicable remedies. 

34  Article 288(3) TFEU; see further detail in Ulrich Haltern, Europarecht (Mohr Siebek 

UTB 2007) 336.  

 
 
                                                 
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1. National Provisions Qualifying for Direct Application by the ECB under Article 
4(3) SSM-R 

For the purpose of banking supervision, the ECB may only apply national law 
within the limits of the competences transferred to it on the basis of Article 
127(6) TFEU, and therefore by Articles 4(1) and 5(2) SSM-R, and not beyond. 
Essentially,  the  ECB  is  competent  to  exercise  all  prudential  supervisory 
powers  with  regard  to  credit  institutions  and  financial  holding  companies, 
while Member States and their authorities remain competent for areas such 
as  anti-money  laundering  and  consumer  protection  with  regard  to  banks, 
capital markets and insurance regulation as a whole, as well as for civil and 
company  law  issues.  In  practice,  it  is  often  difficult  to  delineate  the 
competences transferred to the ECB from those remaining within the remit 
of  national  competent  authorities  and  other  national  authorities.  It  is 
therefore  not  surprising  that  this  issue  has  already  given  rise  to  two 
preliminary  references  to  the  CJEU,35  VTB  Bank  AG  v  Österreichische 
Finanzmarktaufsicht  and  Fininvest  and  Berlusconi  v  ECB,  and  has  been 
addressed in a statement by the ECB in a letter sent to all supervised banks.36  

However,  once  this  delineation  is  made  and  it  is  established  that  a  certain 
task is within the competence of the ECB, Article 4(3) and Article 9 SSM-R 
will come into play. As explained above, for the purpose of fulfilling its tasks, 
the  ECB  may  use  directly  applicable  EU  law  (regulations),  national  law 
transposing EU law (directives) and national law exercising options granted 
to Member States. According to Article 9(1) Subparagraph 3 SSM-R it also 
has  a  third  option.  If  needed  for  the  fulfilment  of  the  tasks  assigned  to  it 
under  Article  4(1)  SSM-R,  the  ECB  may  instruct  national  competent 
authorities to make use of law that is not transposing EU law on behalf of the 
ECB.  This  third  category  can  also  be  described  as  the  ECB's  indirect 

35  Case  C-52/17  VTB  Bank  (Austria)  AG  v  Österreichische  Finanzmarktaufsicht 
EU:C:2018:178,  Case  C-219/17  Fininvest  and  Berlusconi  v  ECB,  see  also  Raffaele 
D'Ambrosio, 'The ECB and NCA liability within the Single Supervisory Mechanism' 
(2015) Banca d'Italia Quaderni di Ricerca Giuridica della Consulenza Legale 78, 79.  

supervisory 

36  European Central Bank, 'Additional clarification regarding the ECB's competence to 
law'  

exercise 
<https://www.bankingsupervision.europa.eu/banking/letterstobanks/shared/pdf/201
7/Letter_to_SI_Entry_point_information_letter.pdf?abdf436e51b6ba34d4c53334f01
97612> accessed 3 January 2018.   

national 

granted 

powers 

under 

 
 
                                                 
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Application of National Law by the ECB 

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competence to make use of national law. In sum, the question whether the 
ECB can make use of a power assigned to competent authorities by national 
law has to be answered in a two-step-approach: (i) Is the ECB acting within 
the  remit  of  Articles  4(1)  and  5(2)  SSM-R?  (ii)  If  yes,  is  the  provision  it  is 
intending to use a transposition of EU law or is it purely a national provision? 
If the former is the case, the ECB may apply that provision directly. If the 
latter is the case, it may instruct the relevant national authority to make use 
of this power on behalf of the ECB. As noted above, it is often difficult to 
determine whether a provision is 'purely national' or an implementation of 
EU law, given that laws implementing directives are often embedded into the 
national context and not so easy to disentangle.  

Both issues, the delineation of the ECB's competences from those of national 
competent  authorities  and  the  extent  to  which  national  laws  apply,  are 
complex. As noted, two requests for a preliminary ruling have been filed so 
far,  each  addressing  a  different  aspect  of  the  question.  In  VTB  v 
Österreichische Finanzmarktaufsicht, the compatibility of a national provision 
with EU law is disputed37 while in Fininvest and Berlusconi v ECB, the applicant 

37  Case  C-52/17  VTB  Bank  (Austria)  AG  v  Österreichische  Finanzmarktaufsicht 
EU:C:2018:178. The relevant question referred is 'Does EU law (in particular, Article 
395(1) and (5) of Regulation (EU) No 575/2013 [...]  preclude a national provision such as 
that  which  was  contained  in  Paragraph  97(1)(4)  of  the  Bankwesengesetz  (Law  on 
Banking) [...] where, despite the fact that the conditions for applying the exemption 
provided for in Article 395(5) are satisfied, (absorption) interest is levied for a breach 
of Article 395(1)?' Put differently, the question is whether EU law can bar the use of a 
national  provision  aimed  at economic  oversight  (which  is  outside  the  scope  of  the 
SSM-R) if that provision is linked to a breach of a prudential requirement (within the 
scope of the SSM-R). The advocate general's opinion from 13 March 2018 suggests 
that  it  does  (para  67-69),  arguing  that  making  use  of  the  national  provision  would 
distort the prudential provision in question. In its ruling of 7 August 2018, the Court 
came to the same conclusion as the AG. However, the main point the Court makes is 
that the national provision is linked to a breach of Article 395(1) CRR (automatically 
levying an interest) without examining the conditions of Article 395(5) CRR under 
which a breach of Article 395(1) would be allowed. It therefore concludes that Article 
97(1)(4) of the Bankwesengesetz is not compatible with EU law. With regard to the 
general qualification of the 'absorption of interest' as provided for in Article 97(1)(4), 
the  Court  further  held  that  it  must  be  qualified  as  administrative  measures  in  the 
sense of Article 65(1) of the CRD IV (therefore 'implementing EU law').  

 
 
                                                 
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has challenged what it considers to be an inaccurate application of domestic 
law by the ECB under Article 4(3) SSM-R.38  

2. Uniform Application of Implemented Directives Across the SSM 

The  ECB  might  understandably  wish  to  apply  a  harmonized  set  of  rules 
across the 19 SSM Member States, given that the aim of the Banking Union 
is  to  level  the  supervisory  playing  field.  If  banking  supervision  is  to  be 
integrated, all banks should be subject to the same set of rules. The opposite 
is  true  if  banks  across  Member  States  are  treated  differently  based  on 
diverging  implementations  of  EU  law.  Indeed,  applying  19  different 
implementations of the Basel III framework, which has been transposed at 
EU level in the form of a directive, namely Directive (EU) No 2013/36 (Capital 
Requirement  Directive  'CRD  IV'),  and  Regulation  (EU)  No  575/2013 
(Capital  Requirements  Regulation 
inevitably  raises  several 
challenges for the ECB.39  

'CRR'), 

First,  the  ECB  is  faced  with  multiple  national  laws,  which  are  highly 
fragmented, partly because the current directives and regulations that set out 
prudential rules comprise over a hundred options and discretions left to the 

38  Case  C-219/17  Fininvest  and  Berlusconi  v  ECB:  The  applicants  raise  the  issue  of  the 
distinction  between  the  question  of  competence  and  of  the  correct  application  of 
national law. In a first set of pleas, the applicants have called into question the ECB's 
expansion of its powers under Article 4(1)(c) and Article 15 of the SSM-R, while, in a 
second set, they allege that the ECB has violated the principles of lawfulness, legal 
certainty and the foreseeability of the administrative action in applying Article 4(3) 
of the SSM-R and the national transposition of the applicable provisions, Article 23(1) 
and (4) of the CRD IV. 

39  The  harmonized  set  of  material  rules  applying  to  banking  regulation  in  the  EU  is 
commonly referred to as the 'Single Rulebook'. It consists of the CRD IV, the CRR 
and other legal acts such as, in particular, Regulatory Technical Standards (RTS) and 
Implementing  Technical  Standards  (ITS)  adopted  at  the  level  of  the  European 
Banking  Authority  (EBA),  as  well  as  Guidelines  issued  by  the  EBA.  Whether  the 
'Single  Rulebook'  provides  for  a  truly  harmonized  set  of  rules  has  been  critically 
challenged. See Valia Babis 'Single Rulebook for Prudential Regulation of Banks  – 
Mission  Accomplished?'  (2014)  University  of  Cambridge  Faculty  of  Law  Research 
Paper 
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2456642> 
accessed 4 January 2018 and Angelo Baglioni, The European Banking Union (Palgrave 
MacMillan 2016) 21.  

37/2014 

 
 
                                                 
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Application of National Law by the ECB 

171 

Member States.40 Second, the ECB might be put in situations where Member 
States do not have consistently transposed EU secondary acts of legislation. 
Furthermore, it is not yet clear what precisely is meant by 'national law'  in 
Article 4(3) SSM-R. It also remains unclear whether the ECB may interpret 
national  provisions  implementing  the  EU  law  autonomously,  as  it  does  by 
publishing  guidance  on  the  interpretation  of  the  underlying  CRD  IV 
provisions,  or  whether  it  is  bound  by  the  national  context  surrounding 
national provisions, especially by national case-law. 

Therefore,  which  EU  principles  and  mechanisms  may  the  ECB  rely  on  to 
ensure a uniform, effective and fair application of EU law and thus overcome 
the various challenges pointed out above? 

First, the SSM-R itself refers to the primacy of EU law in its recital 34. The 
primacy principle may accordingly constitute a powerful instrument through 
which the ECB could disapply any national rule that does not comply with 
EU law. The ECB could make strict use of the primacy principle in such a way 
as to ultimately apply the same set of rules across all the Member States. 

Second,  the  ECB  may  invoke  the  principle  of  sincere  cooperation  (Article 
4(3) of the Treaty on the European Union ('TEU')), under which 'the Union 
and  the  Member  States  shall,  in  full  mutual  respect,  assist  each  other  in 
carrying out tasks which flow from the Treaties' to justify 'favoring' EU law 
over national law. 

Third,  it  might  also  be  tempting  for  the  ECB  to  directly  apply  provisions 
from  the  directive,  rather  than  the  national  provisions  implementing  this 
directive. The ability of European institutions, however, to apply directives 
directly is strictly limited, as set out in the case-law of the CJEU.41 Briefly put, 
direct  application  of  directives  is  confined  to  situations  in  which  an 
individual's  rights  are  violated  by  his/her  Member  State's  failure  to 
implement a directive correctly (or failure to implement it at all) and is subject 

40  'Overview of options and discretions set out in Directive 2013/36/EU and Regulation 
< 
(European 
(EU) 
http://www.eba.europa.eu/supervisory-convergence/supervisory-disclosure/options-
and-national-discretions> accessed 3 January 2018. 

Authority) 

575/2013' 

Banking 

No 

41   Paul Craig and Grainne De Burca,  'EU Law'  (6th edition Oxford University Press 

2015) at 200s. 

 
 
                                                 
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to certain conditions, for example that the provision to be directly applied is 
unconditional and sufficiently precise. This case-law appears to preclude an 
organ  of  the  European  Union  from  directly  applying  a  directive  for  the 
purpose  of  harmonization,  even  if  the  directive  has  been  implemented 
inconsistently or incompletely. That being said, it may not be inconceivable: 
the  CJEU  has  traditionally  adopted  a  teleological  approach  and  has 
sometimes  adopted  creative  interpretations  of  EU  law  that  are  geared 
towards advancing and furthering European integration and preserving the 
integrity of the EU legal order. In recent years, the CJEU has notably upheld 
all  challenged  measures  adopted  by  EU  institutions  or  organs,  such  as  the 
Eurogroup, in response to the sovereign debt and financial crises.42 On the 
one hand, it is noteworthy that the CJEU has never expressly precluded an 
EU institution from relying on the direct effect principle, since this issue has 
never been raised before. On the other hand, as noted above, it is the first 
time in the history of European integration that an EU institution has been 
entrusted  with  the  task  of  applying  national  law.  Therefore,  a  creative 
interpretation of the direct effect principle, coupled with the effectiveness 
and uniform application of EU law principles, could allow the ECB to directly 
rely  on  the  EU  rules  instead  of  the  corresponding  domestic  rules.  In 
situations where Member States have manifestly transposed EU secondary 
acts of legislation incorrectly, the ECB could therefore argue that in order to 
perform  the  tasks  entrusted  to  it  by  the  SSM-R  and  to  comply  with  the 
primacy and effectiveness principles, it has a 'duty' to directly apply the EU 
provision, notwithstanding the absence of any corresponding national rule. 
In other words, if the CJEU has paved the way for individuals to rely on the 
direct effect doctrine, why would it not reach a similar conclusion regarding 
an  EU  institution  charged  with  applying  a  coherent  set  of  rules  in  the 
Members States in the face of highly fragmented national provisions? 

Fourth, the ECB could refer where possible to acts of the European Banking 
Authority ('EBA'), the common European Banking regulator that has already 

42  See, in particular: Case C-370/12 Pringle EU:C:2012:756 and Case C-62/14 Gauweiler 
EU:C:2015:7.  See  also,  among  others,  Joined  Cases  C-105/15  P  to  C-109/15  P 
Konstantinos  Mallis  and  others  EU:C:2016:702  on  a  2013  Eurogroup  statement 
concerning the restructuring of the banking sector in Cyprus. 

 
 
                                                 
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Application of National Law by the ECB 

173 

established harmonized rules in this sector.43 The EBA can issue regulatory 
and implementing technical standards, which can be elevated to the status of 
an  EU  regulation  if  the  EBA  has  been  delegated  authority  to  adopt  such 
standards under the relevant secondary law acts. Furthermore, the EBA may 
also issue guidelines on any matter arising from the legal acts referred to in 
Article 16(1) of Regulation (EU) No 1093/2010 ('EBA-R'). Such guidelines are 
not legally binding, but are subject to a 'comply or explain' mechanism under 
Article 16(3) EBA-R. In this way, supervisory authorities (which now include 
the  ECB)  must  declare  whether  they  comply  with  the  EBA  guidelines  or 
explain  why  they  do  not.  The  EBA  must  stay  within  the  limits  of  the 
applicable  secondary  law  acts  when  releasing  such  guidelines.  What  EBA 
guidelines  do,  however,  is  provide  much  more  detail  on  secondary  law 
provisions.  In  this  way,  they  harmonize  the  interpretation  and  sometimes 
even  the  process  surrounding  these  provisions  and  they  therefore  do 
effectively  bind  supervisory  authorities 
law 
implementing  directives  in  a  particular  way.  In  areas  that  are  primarily 
regulated  by  CRD  IV,  and  not  by  its  directly  applicable  counterpart,  the 
CRR, it is useful for the purpose of applying a uniform set of rules across the 
Eurozone that the EBA produces guidelines that are as detailed as possible in 
order to harmonize the understanding of implemented provisions.  

interpret  national 

to 

While relying on the regulatory products of the EBA, the ECB may, however, 
also  act  as  a  regulator  to  a  limited  extent.  National  supervisory  authorities 
generally  do  produce  soft  law  such  as  circulars,  guidance  or  minimum 
standards.  Within  a  limited  mandate  that  varies  from  Member  State  to 
Member  State,  they  sometimes  even  produce  legally  binding  regulatory 
products  in  order  to  make  supervisory  expectations  and  practice  more 
transparent for market participants and to optimize the supervisory process. 
The  ECB  also  produces  similar  soft  law  instruments  through  public 

43  For a critical examination of the EBA's role see 'European banking supervision taking 
shape  —  EBA  and  its  changing  context'  (European  Court  of  Auditors,  2014) 
<https://www.eca.europa.eu/Lists/ECADocuments/SR14_05/SR14_05_EN.pdf> 
accessed 5 January 2018. 

 
 
                                                 
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consultations,44  general  communications  (letters),45  and  recommendations, 
as  well  as  legally  binding  decisions  and  regulations.46  To  elaborate  on  the 
nature  of  these  different  instruments  would  go  beyond  the  scope  of  this 
paper.  However,  it  is  important  to  note  that  several  of  these  ECB 
instruments  do  attempt  to  provide  a  firm  interpretation  of  CRD  IV 
provisions,  even  if  they  always  contain  the  disclaimer  'notwithstanding 
national  law'.  Areas  of  prudential  banking  regulation  such  as  internal 
governance, suitability requirements for members of the management bodies 
of  credit  institutions  and  remuneration  policies  within  banks  are  solely 
regulated by the CRD IV and not by the CRR as they are generally closely 
linked to national company law, which is not harmonized across the EU. If 
the ECB creates a guide on the relevant CRD IV provisions,47 the question is 
how these guides interact with the national provisions implementing these 
CRD  IV  provisions  and  how  they  relate  to  national  case  law,  soft  law 
instruments or administrative practice.  

One may question how far the ECB's mandate to regulate may be stretched: 
when  does  the  task  of  the  legislator  end  and  where  does  administrative 
practice  start?  It  is  known  from  national  contexts  that  the  line  between 
legislative and executive levels of government may not always be easily drawn. 
Within  the  SSM,  the  difficulty  of  separating  the  legislative  from  the 
executive is ultimately closely linked with the political questions of (i) how 

44  'Public Consultations' (ECB) 

<https://www.bankingsupervision.europa.eu/legalframework/publiccons/html/index
.en.html> accessed 3 January 2018.  

45  'Letters to Banks' (ECB) 

<https://www.bankingsupervision.europa.eu/banking/letterstobanks/html/index.en.
html> accessed 3 January 2018.  

46  'General Framework' (ECB) 

<https://www.bankingsupervision.europa.eu/legalframework/ecblegal/framework/ht
ml/index.en.html> accessed 3 January 2018.  

47  For  example,  with  regard  to  the  suitability  assessment  of  members  of  the 
management  body  of  credit  institutions,  the  ECB has  published  a  'Guide  to  Fit & 
Proper Assessments' 
<https://www.bankingsupervision.europa.eu/ecb/pub/pdf/ssm.fap_guide_201705.en.
pdf?de3bbbd9ecadd9cd2d75889d39effaaf>  accessed  3  January  2018;  it  has  also 
published a Recommendation ECB/2016/44 on dividend distribution policies [2016] 
OJ 481/1.  

 
 
                                                 
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Application of National Law by the ECB 

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much integration was intended through the SSM-R and (ii) whether the ECB 
has received a mandate to 'harmonize' national law implementing directives 
through a common administrative practice across all SSM Member States.  

The  simplest  solution  to  many  of  the  problems  raised  in  this  subsection 
would be to merge the two-fold CRR/CRD IV regulatory regime into one or 
two directly applicable regulations. In that way, the possibility given to the 
ECB  to  use  national  law  based  on  Article  4(3)  SSM-R  would  practically 
become  obsolete  as  almost  all  relevant  prudential  law  for  banks  would  be 
directly  applicable.  However,  the  European  legislator  has  not  chosen  this 
path.  Instead, it seems to maintain the division between the CRR and CRD 
IV as it is foreseen now, at least as far as the Commission's proposals for the 
CRR 2 and CRD V are concerned.48 

3.  Identifying  Applicable  Procedural  Rules  in  Absence  of  a  Common  European 
Administrative Procedural Law 

The third problem arising from the direct application of national law under 
Article 4(3) SSM-R is the issue of the applicable procedural law. The EU does 
not have a harmonized body of law regulating administrative procedure;  in 
fact,  the  CJEU  has  long  recognized  the  principle  of  national  procedural 
autonomy. While this is not a problem as long as national institutions have a 
national administrative law at their disposal, it becomes an issue when an EU 
institution is required to apply substantive national law (implementing an EU 
directive) without being bound by national administrative rules. Substantive 
and  procedural  rules  cannot  always  be  properly  disentangled  and  there  is  a 
risk of distorting national provisions when applying them in a void without 
reference  to  their  proper  procedural  framework.  However,  pursuant  to 

48  Proposal COM(2016) 854 final for a Directive of the European Parliament and of the 
Council  amending  Directive  2013/36/EU  as  regards  exempted  entities,  financial 
holding  companies,  mixed  financial  holding  companies,  remuneration,  supervisory 
measures and powers and capital conservation measures [2016]; Proposal COM(2016) 
850 final for a Regulation of the European Parliament and of the Council amending 
Regulation  (EU)  No  575/2013  as  regards  the  leverage  ratio,  the  net  stable  funding 
ratio,  requirements  for  own  funds  and  eligible  liabilities,  counterparty  credit  risk, 
market risk, exposures to central counterparties, exposures to collective investment 
undertakings, large exposures, reporting and disclosure requirements and amending 
Regulation (EU) No 648/2012 [2016].  

 
 
                                                 
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Article 6 of the European Convention of Human Rights (hereafter 'ECHR') 
and Article 47 of the Charter of Fundamental Rights of the European Union 
(hereafter  'CFR'),  as  well  as  the  corresponding  case-law  of  the  European 
Court  of  Human  Rights49  and  the  CJEU,50  there  are  a  number  of  supra-
national principles of fair trial and due process which have emerged in cases 
relating to criminal proceedings, and which can and have been extended to 
administrative  procedures  through  the  case-law  of  the  respective  courts.51 
These principles are access to independent courts, the right to a legal remedy 
and the principle of ne bis in idem. For the purpose of the SSM, the SSM-FR 
contains its own general due process provisions for adopting ECB supervisory 
decisions  in  its  Title 2  (Articles  25  –  35  SSM-FR),  including  the  right  to  be 
heard  (Article  31  SSM-FR),  the  right  to  have  access  to  files  in  the  ECB 
supervisory procedures (Article 32 SSM-FR), the obligation for the ECB to 
state the reason (material facts and legal reasons) for any supervisory decision 
(Article  33  SSM-FR),  as  well  as  on  the  notification  of  ECB  supervisory 
decisions (Article 35 SSM-FR).  

However,  national  administrative 
laws  often  contain  more  detailed 
procedural  rules,  such  as  deadlines,  specific  notification  obligations  or 
specific requirements with regard to form. Furthermore, each Member State 
draws  a  different  line  between  substantive  and  procedural  provisions  – 
sometimes  material  provisions  applying  to  the  supervision  of  banks  are 
stipulated  in  a  separate  set  of  rules  from  procedural  provisions,  such  as 
deadlines,  notification  obligations,  sanctions,  the  right  to  be  heard  or  the 
right to appeal. Sometimes, these procedural provisions are integrated into 
the material provisions. The question that arises is to which extent the ECB 
can be bound by national procedural law: how far are the procedural elements 

49  Engel et al v The Netherlands App no. 5100/71 (ECtHR, 23 November 1976) 
50  E.g.  C-489/10  Bonda  ECLI:EU:C:2012:319;  C-617/10  Åklagaren  v  Akerberg  Fransson 

EU:C:2013:105.  

51  Christoph Grabenwarter and Anna Katharina, 'Justiz- und Verfahrensgrundrechte' 
in  Dirk  Ehlers  (ed)  Europäische  Grundrechte  und  Grundfreiheiten  (De  Gruyter  2014); 
Jörg  Gundel,  'Justiz-  und  Verfahrensgrundrechte'  in,  Dirk  Ehlers  (ed)  Europäische 
Jedlicka, 
Grundrechte 
'Vewaltungsgeldbußen 
für 
Kreditinstitute  im  Einklang  mit  der  Rechtssprechung  von  EGMR  und  EuGH?' 
(2016) Zeitschrift für Finanzmarktrecht 481.   

im  SSM  –  Steht  der  gewährte  Rechtsschutz 

und  Grundfreiheiten 

(De  Gruyter 

2014);  Peter 

 
 
                                                 
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Application of National Law by the ECB 

177 

of certain material provisions stemming from implementation of the CRD 
IV  part  of  that  implementation  and  when  are  they  purely  national 
administrative law? 52 

One practical way to answer this question is to say that procedural provisions 
may only be applied by the ECB insofar as they clearly stem from EU law. For 
example,  the  CRD  IV  does  contain  some  procedural  provisions,  such  as 
Article  22  CRD  IV  on  the  assessment  of  qualifying  holdings  in  a  credit 
institution,  which  stipulates  in  its  paragraph  2  that  competent  authorities 
shall  have  a  maximum  period  of  60  working  days  from  the  day  they  are 
notified of an intended acquisition. In these cases, this deadline will have to 
be  applied  by  the  ECB  as  implemented.  However,  there  are  less  clear-cut 
examples of procedural provisions in the CRD IV, such as the assessment of 
suitability  of  members  of  the  management  body  or  key  function  holders. 
Here,  the  CRD  IV  only  stipulates  the  material  criteria  that  these  persons 
have  to  fulfil,  leaving  it  open  to  supervisory  authorities  to  determine  the 
process  for  assessing  these  criteria.  Is  this  process  then  part  of  the 
implemented  EU  law  that  has  to  be  applied  by  the  ECB  or  can  the  ECB 
develop its own process, being bound only to ensure that the relevant persons 
fulfil  the  material  suitability  criteria  as  implemented?  In  practice,  this 
problem has been solved with a compromise: the ECB has developed its own 
rather high-level assessment process through its Fit & Proper Guide,53 while 
national law may add more specific procedural provisions. 

4. Remedies 

From the credit institutions' perspective, the direct application of national 
law  raises  the  question  of  what  kind  of  remedies  are  available  against 
supervisory decisions54 taken by the ECB or national authorities.  

52  Klaus Lackhoff, 'Single Supervisory Mechanism – A practitioner's guide' (Beck 2017). 
53  ECB (n 49).  
54  With regard to 'decisions' taken by the ECB, within the meaning of administrative 
acts  as  defined  in  Article  288  TFEU,  it  is  important  to  distinguish  between  the 
following: simple supervisory decisions (e.g. granting a license, approving a qualifying 
holding,  approving  a  reduction  of  own  funds,  an  application  of  a  waiver,  or  the 
suitability  of  a  member  of  a  management  body);  supervisory  measures  (Article  16 
SSM-R based on Article 104 CRD IV), which are meant to reinstate legal compliance 

 
 
                                                 
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Supervisory  action  generally  takes  the  form  'decisions'.  It  is  important  to 
determine whether the ECB or the national competent authority ultimately 
issues a supervisory decision containing a supervisory measure or imposing a 
sanction,  as  this  determines  the  remedies  available  to  the  addressee  of  the 
decision. Decisions issued as decisions of the ECB ('on ECB paper') may only 
be reviewed at the ECB-internal administrative board of review (Article 24 
SSM-R)  or  before  the  CJEU.  Decisions  issued  by  national  competent 
authorities may be challenged before national administrative courts. In terms 
of  European  integration,  this  makes  a  big  difference,  especially  as  national 
courts have different bodies of case-law to refer to as compared to the CJEU, 
which has yet to develop its own case-law on this subject-matter and is limited 
to reviews pursuant to actions for annulment under Article 263 TFEU (recital 
60  to  the  SSM-R).  Thus,  no  actions  based  on  Article  261  TFEU  can  be 
brought.55  Such  actions  could  have  been  relevant  for  remedies  against 
pecuniary penalties imposed directly by the ECB (Article 18(1) SSM-R). 

Another  complication  arises  from  the  fact  that  national  competent 
authorities  maintain  far-reaching  powers  in  areas  for  which  the  ECB  is 
ultimately  competent. In many cases, they prepare draft decisions that are 
then  adopted  by  the  ECB  according  to  its  decision-making  procedure  (see 
e.g.  Article  14  or  15  of  the  SSM-R).  In  procedures  pursuant  to  Article  15, 
national competent authorities assess a proposed acquisition (based on their 
implementation of Articles 22 and 23 CRD IV) and submit a draft decision to 
the ECB to either oppose or not oppose the acquisition. The Consiglio di Stato 
recently referred an interesting question arising from such a situation to the 
CJEU in a request for a preliminary ruling56 about the legal nature of draft 
decisions  submitted  by  national  authorities  to  the  ECB  and  the  basis  on 
which the ECB makes its decisions. The status of these draft decisions is very 
relevant for present purposes as  these decisions can be characterized as an 

(e.g. by imposing additional own fund or liquidity requirements, by limiting variable 
remuneration,  or  by  restricting  business);  and  administrative  sanctions  (Article  18 
SSM-R),  which  generally  consist  of  pecuniary  penalties  imposed  for  breaches  of 
applicable prudential provisions. 

55  Jedlicka (n 51); Gijsbert ter Kuile, Laura Wissink and Willem Bovenschen,  'Tailor-
made Accountability within the Single Supervsiory Mechanism' (2015) 52 Common 
Market Law Review 155.  

56  Case C-219/17 Berlusconi and Fininvest v Banca d'Italia. 

 
 
                                                 
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Application of National Law by the ECB 

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instance of 'the ECB applying national law': while national authorities draft 
the  decision,  with  their  expertise  and  knowledge  of  the  national 
particularities, they are ultimately adopted by the ECB. The Court can deal 
with the question of whether an action for annulment against a decision of 
the ECB is sufficient if the decision is based on a draft proposal of a national 
competent authority, in particular if the decision of the national competent 
authority is solely based on national law and, in this case, national case-law. 
The  Court  can  also  say  something  about  the  legal  nature  of  national 
competent  authorities' draft decisions submitted to the ECB, especially as 
the ECB is not bound by them.  

In the national context, the problem could be turned around in cases where 
national competent authorities act upon instructions of the ECB (Article 9(1) 
SSM-R).  In  these  cases  too,  the  question  can  be  asked  whether  the  credit 
institution  has  a  sufficient  remedy  in  being  able  to  appeal  only  against  the 
national competent authorities' decision and not the underlying instruction 
of the ECB.  

To summarize, the supervision model set up by the SSM-R gives rise to many 
challenges with regard to the availability of effective remedies. The first issue 
that arises is that of the competent authority to supervise credit institutions. 
Identifying the competent authority is complicated by the fact that the SSM-
R does not comprise sufficiently clear-cut criteria to determine whether the 
ECB or the national authorities are competent.  

The second issue relates to the fact that it is extremely difficult to assess and 
characterize  the  nature  of  decisions  taken  by  the  ECB  and  the  national 
authorities.  The  scenario  which  raises  the  fewest  difficulties  involves 
decisions taken by the ECB on the sole basis of EU law (e.g. application of 
provisions  that  do  not  involve  national  rules).  Provided  that  the  ECB  is 
competent  to  exercise  its  supervision  powers,  the  CJEU  then  has  sole 
jurisdiction  to  review  its  decision.  However,  given  the  complexity  of  the 
mechanism,  it  is  likely  that  other  scenarios  will  arise.  First,  what  happens 
when the ECB applies (and thus interprets) national law? The CJEU will have 
jurisdiction since the decision at stake has been taken by an EU institution, 
but it does not have jurisdiction to review national law. The CJEU would be 
faced with an unprecedented challenge, since the Treaties do not provide for 
any  mechanism  allowing  the  Court  to  refer  questions  of  interpretation  of 

 
 
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national  law  back  to national  courts.  Second,  how  will  national  courts  deal 
with  cases  where  applicants  challenge  a  decision  adopted  by  a  national 
authority  that  has  done  so  on  the  basis  of  the  ECB's  instructions?  Will 
applicants  have  to  challenge  both  the  'national'  decision  before  national 
courts  and  the  ECB's  instructions  before  the  CJEU?  How  will  the  CJEU 
qualify the ECB's instructions? As decisions or as preliminary acts, which, as 
such,  may  not  be  challenged?  What  about  the  cases  where  a  national 
authority acts on the basis of the ECB's instructions but misinterprets these 
instructions? How will national courts and the CJEU cooperate in a manner 
that does not undermine the EU primacy principle and ensure that EU law is 
applied consistently and uniformly across Member States?57  

Third, what happens when national authorities impose penalties in respect of 
breaches  of  national  provisions  transposing  the  SSM-R  and  Directive 
2013/36/EU on access to the activity of credit institutions and the prudential 
supervision of credit institutions and investment firms? The CJEU has very 
recently ruled that such decisions are not governed by national law but rather 
by Article 65(1) of Directive 2013/36, i.e. by EU law.58 The second and third 
issues also give rise to a risk of lengthy procedures, especially when decisions 
are being simultaneously challenged at national and EU levels, such as replies 
to  requests  for  preliminary  rulings.  Overall,  there  is  a  risk  that  the  remedy 
regime as set up does not satisfy the due process requirements of Article 6 
ECHR  and  Article  51  CFR  nor  Article  13  ECHR  on  effective  remedies. 
Further analysis is, however, beyond the scope of this paper.  

Overall, as far as the availability of remedies is concerned, the SSM-R thus 
raises more issues than it solves. 

57  Some  of  these  questions  are  discussed  by  Andreas  Magliari,  ''Il  Single  Supervisory 
Mechanism' e l'applicazione dei diritti nazionali da parte della banca central europea,' 
(2016) 
<https://dottoratoblog.files.wordpress.com/2016/01/magliari_il-ssm-e-
lapplicazione-dei-diritti-nazionali-da-parte-della-bce.pdf>  accessed  3  January  2018, 
at 32.  

58  Case C-52/17 VTB Bank (Austria) v. FMA at 41. 

 
 
                                                 
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IV. THE SSM AS A HYBRID MODE OF EUROPEAN INTEGRATION 

It  follows  from  the  discussion  above  that  not  only  are  EU  and  national 
competences  intricately  intertwined,  but  so  are  EU  and  national  laws. 
Nothing new so far, some could be tempted to say. The EU, like other federal 
polities, has indeed traditionally been characterized by a complex division of 
competences  in  many  areas,  where  it  is  difficult  to  delineate  the  EU  and 
national levels of governance and where EU and national laws are therefore 
deeply intertwined. However, the above discussion reveals that the specific 
features  of  the  SSM-R,  including  the  application  of  national  law  by  an  EU 
institution for the first time in the history of European integration, imply a 
new mode of European integration. This new way for EU law to penetrate 
into the national legal orders relates to three important aspects of the theory 
of  European  integration,  as  defined  in  the  introduction:  the  mode  of 
execution of EU law, the founding principles of EU law, and the role of EU 
institutions. These three aspects are discussed in turn below.  

1. The SSM as a Hybrid Mode of Execution of EU law 

The SSM represents a unique way to further European integration. On the 
one hand, it combines features of traditional forms of European integration, 
including: (i) situations where the ECB applies EU law i.e. instances of direct 
administration/enforcement  of  EU  law;  (ii)  situations  where  national 
supervisors 
indirect 
administration/enforcement  of  EU  law;  and  (iii)  situations  where  the  ECB 
indirect 
may 
administration.  Such  instances  may  already  be  found  in  other  areas,  in 
particular  the  law  of  state  aid,  when  national  authorities  are  required  to 
recover an incompatible aid.59 

instruct  national  supervisors, 

instances  of 

i.e.  other 

instances 

apply 

law, 

EU 

i.e. 

of 

On  the  other  hand,  the  application  of  national  law  by  the  ECB  is  an 
undeniably novel feature. From a European integration theory perspective, 
this means that an EU institution must draw on national law to carry out the 
tasks  entrusted  to  it  by  EU  law.  This  model  does  not  correspond  to  any 

59  Andreas  Witte,  'The  application  of  national  banking  supervision  law  by  the  ECB: 
Three  parallel  modes  of  executing  EU  law?'  (2014)  21/1  Maastricht  Journal  of 
European and Comparative Law 89' at 97s. 

 
 
                                                 
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traditional  scheme  of  execution  of  EU  law.  It  does  not  involve  direct 
enforcement  of  EU  law.  If  the  ECB  does  directly  supervise  credit 
institutions,  it  not  only  applies  rules  adopted  at  EU  level,  but  also  applies 
national  rules  that  are  intended  to  implement  EU  acts  of  secondary 
legislation. However, this situation is distinct from the indirect enforcement 
of  EU  law  model,  since  the  supervision  is  operated  at  EU  level  and  not  at 
national level. 

Instead,  the  governance  model  set  up  by  the  SSM-R  consists  of  the  EU 
legislator adopting rules that are subsequently transposed into national legal 
systems before being applied by an EU institution in decisions about national 
credit institutions.60 Thus, rules move back and forth from the EU legal order 
to national legal orders. This is coupled with a mix of direct execution of EU 
law,  an  EU  institution  enforcing  a  set  of  rules  vis-à-vis  individuals  or  legal 
persons,  and  a  hybrid  mode  of  execution  of  EU  law,  an  EU  institution 
applying EU rules as transformed by national authorities. 

Thus,  it  may  be  concluded  that  the  SSM  breaks  with  traditional  modes  of 
European integration, and constitutes a hybrid mode of execution of EU law 
in  the  sense  that:  (i)  it  furthers  European  integration  to  the  extent  that 
supervision  per  se  has  been  centralized  in  the  hands  of  the  ECB,  but  (ii)  it 
limits  European  integration  to  the  extent  that  it  still  leaves  it  up  to  the 
Member States to decide on how to supervise the credit institutions covered 
by the SSM-R. 

Through  this  unique  interplay  between  EU  and  national  supervisory 
competences and prudential laws, the operation of the SSM may have deep 
implications for the founding principles of EU law. 

2. The SSM in Light of the Founding Principles of EU law 

The  SSM  has  substantial  implications  for  two  main  principles  of  EU  law, 
namely the overarching principle of the autonomy of the EU legal order and 
the substantive principle of non-discrimination, which mirrors that of equal 
treatment. 

60 Magliari (n 59) describes it as a 'circular movement', at 26-30. 

 
 
                                                 
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A. The Autonomy of the EU Legal Order 

Regarding  the  autonomy  of  the  EU  legal  order,  there  is  little  doubt  that 
having  an  EU  institution  apply  national  laws  is  a  real  challenge  for  the 
principles  of  effectiveness,  consistency,  uniformity,  direct  effect,  and 
primacy.  

One  might  indeed  wonder  whether  the  complex  supervisory  architecture 
described  above  complies  with  the  principle  of  effectiveness  of  EU  law  by 
creating  a  situation  that  could  lead  to  an  ineffective  supervision  of  credit 
institutions.61 How can the ECB possibly pursue effective supervision while 
applying more than a dozen national laws? Is the ECB able to deal with the 
particularities and nuances of the national legal orders? In addition, as seen 
above,  the  many  complexities  of  the  SSM-R  are  likely  to  be  exposed  to 
litigation,  not  only  on  the  rules  on  supervision  themselves  but  also  on  the 
respective jurisdictions of the CJEU and of the national courts. 

In  the  same  vein,  having  an  EU  institution  apply  national  law,  which  itself 
transposes EU acts of secondary legislation, might undermine the principles 
of consistency and uniformity, which are central to the application of EU law, 
since the ECB could be led to apply the same provisions of EU law differently 
across the Member States. 

Finally,  the  SSM-R  also  raises  the  issue  of  the  primacy  principle,  which  is 
crucial  for  the  preservation  of  the  autonomy  of  the  EU  legal  order.  
Admittedly, Recital 34 provides that the application of national law by the 
ECB 'is without prejudice to the principle of the primacy of Union law.' Such 
application must therefore be carried out to the extent that it does not breach 
this founding principle. But determining the extent to which a national rule 
complies  with  EU  law  is  an  extremely  difficult  task,  especially  because  the 

61  See Eddy Wymeersch, 'The Single Supervisory Mechanism or ''SSM'', part one of the 
Banking  Union'  (2014)  European  Corporate  Governance  Institute  (ECGI)  -  Law 
Working  Paper 
240/2014  <https://papers.ssrn.com/sol3/papers.cfm?abstract_ 
id=2397800&rec=1&srcabs=2403859&alg=1&pos=5> accessed 3 January 2018, at 5: 'As 
long  as  regulation  and  supervision  were  national,  these  differences  did  not  create 
internal tensions, but led to significant cross-border friction […]. In the future the 
opposite is likely to occur, which will affect the effectiveness of supervision, as the 
single supervisor will be obliged to act on the basis of divergent 'underlying' national 
regulations in different Member States.' 

 
 
                                                 
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relevant  EU  acts  of  secondary  legislation  leave  many  options  open  to  the 
Member States. 

B. The Principle of Non-Discrimination 

Turning now to the substantive principles of non-discrimination and equal 
treatment,  the  application  of  national  law  by  the  ECB  to  the  significant 
institutions alongside the tasks carried out by national supervisors vis-à-vis 
less significant institutions might entail two sets of implications.  

Firstly,  significant  banks  might  be  supervised  differently  across  Member 
States. If Member State A has more stringent rules than Member State B, the 
ECB  will  apply  more  stringent  rules  to  credit  institution  A  than  to  credit 
institution  B.  As  a  result,  significant  credit 
institutions  might  be 
discriminated  against  on  the  basis  of  their  place  of  residence.  The  SSM 
therefore does not solve the issue that supervision may still be more or less 
stringent across Member States.  

Secondly,  there  is  a  risk  that  the  ECB,  when  supervising  a  significant 
institution in Member State A, could interpret and apply a national rule in a 
manner  that  is  inconsistent  with  the  interpretation  of  the  national 
supervising  authority  that  has  retained  the  competence  to  supervise  less 
significant institutions. Once again, this is likely to give rise to litigation and 
raise issues as to which of the EU or national courts has jurisdiction to settle 
the disputes. 

3 The SSM and the Role of EU Institutions 

From  a  broader  perspective,  the  SSM-R  raises  doubts  about  the  functions 
that can be properly performed by EU institutions. It should be recalled, in 
this respect, that one of the main purposes of the European Union is to create 
'an  ever-closer  union  among  the  peoples  of  Europe',  which  necessarily 
requires  going  beyond,  and  sometimes  even  conflicting  with,  national 
interests.  This  can  be  compared  to  the  tasks  carried  out  by  the  Member 
States at the national level which seek to pursue the national public interest, 
which  in  turn  subsumes  the  interests  of  the  individual  members  of  their 
polity.  

 
 
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In this regard, the CJEU has already described the Community (now Union) 
system  as  being  'designed  to  ensure  that  the  general  interest  of  the 
Community [Union] would be protected'62 against national interests which, 
if  they  were  to  prevail,  could  jeopardize  the  sustainability  of  the  whole 
system.  In  other  words,  it  has  drawn  a  clear  distinction  between  the 
respective  interests  of  the  Member  States  and  the  Union.63  The  EU 
institutions  are  therefore  logically  under  an  obligation  to  pursue,  develop, 
and  preserve  the  Union's  general  interest.  The  Commission,  which  'shall 
promote the general interest of the Union',64 is the institution which embodies 
this general interest to the greatest extent. As the General Court has put it, 
the  Commission  'exercises  its  functions  entirely  independently  from  the 
Member  States  in  the  general  interest  of  the  Community  [Union]'.65  The 
same goes for the Council, even if it is, admittedly, a platform where Member 
States  may  raise  their  'national  voices'.  The  Court  has  stressed  that,  when 
adopting  new  uniform  rules  at  EU  level,  the  Council  is  'required  to  take 
account not of the special interests of the various Member States, but of the 
general interest of the Community [Union] as a whole'.66 As a result, the EU 
secondary  acts  of  legislation  also  necessarily  embody  the  Union's  general 
interest.67 

Where does the ECB, to the extent that it applies national laws while carrying 
out its supervisory tasks, lie? The SSM-R is the result of tough negotiations 
between  Member  States,  which  have  ultimately  consented  to  a  more 
centralized  supervision  of  their  credit  institutions  without  agreeing  to  a 
uniform  way  of  supervising  them.  Two  situations  should  be  distinguished. 

62  Case 231/78 Commission of the European Communities v. United Kingdom of Great Britain 

and Northern Ireland EU:C:1979:101 at 15. 

63  See,  for  instance,  Case  2/60  Niederrheinische  Bergwerks  -  Aktiengesellschaft  and 
Unternehmensverband des Aachener Steinkohlenbergbaues v High Authority of the European 
Coal and Steel Community EU:C:1961:15 at 145. 

64  Article 17 TEU [emphasis added]. 
65  Case T-41/98 Nederlandse Antillen v. Commission EU:T:2000:36 at 59. 
66  Case C-150/94 United Kingdom of Great Britain and Northern Ireland v. Council of the 
European Union EU:C:1998:547 at 62. See also, in the same vein: Case 46/76 W. J. G. 
Bauhuis v The Netherlands EU:C:1977:6 at 29. 

67  See, for instance, Case C-128/89 Commission v. Italy EU:C:1990:311 at 14 and Case C-

282/90 Vreugdenhil v. Commission EU/C/1992/124 at 24. 

 
 
                                                 
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When  the  ECB  applies  regulations  and  directives  that  do  not  leave  the 
Member States with any leeway, it can be argued that it promotes, like any 
other EU institution, the general interest of the Union. However, the same 
cannot  be  said  of  situations  where  it  applies  national  laws  through  which 
Member States have exercised the options made available to them by the EU 
secondary acts of legislation. Indeed, such national laws constitute a means 
for the Member States to protect their own individual interests and thus to 
preserve  their  own  policy  choices.  As  a  result,  the  ECB  is  no  longer 
safeguarding  the  EU  common  interest,  but  also  necessarily  individual 
national interests, which may sometimes be at odds with the sustainability of 
the whole system. This aspect clearly breaks with the traditional modes of 
European  integration:  the  ECB  is  now  an  EU  institution  which  does  not 
solely embody the Union's interests, intended to subsume national ones, but 
also preserves national particularities. 

V. CONCLUSION 

This  paper  has  discussed  the  peculiar  features  of  the  SSM  in  light  of  the 
theory of European integration and has argued that the ECB's application of 
national laws while supervising significant credit institutions breaks in several 
regards with the traditional modes of European integration.  

The  SSM-R  comprises  several  unique  features  relating  to  the  division  of 
competences between the ECB and national supervisors and the relationship 
between EU and national laws. The application of national laws by the ECB 
has  significant  practical  implications,  including  the  identification  of  the 
national  provisions  which  qualify  for  direct  application,  the  necessity  of 
applying supervisory rules uniformly across Member States, the application 
of  procedural  rules  in  the  absence  of  common  European  rules,  and  finally 
remedies.  Overall,  this  paper  claims  that  the  SSM  may  be  described  as  a 
hybrid mode of European integration. 

The issues that stem from the new supervision regime are, for the most part, 
not entirely new (for example, the division of competences between the EU 
and national levels and the separation of EU and national laws), but they have 
become more pressing. It is likely that they will give rise to unprecedented 
complexity in cases that will with increasing frequency be brought before EU 
and national courts. 

 
 
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It remains to be seen, in practice, whether the system set up by the SSM-R is 
sustainable and ultimately allows for better and more efficient supervision of 
credit  institutions,  which  eliminates  or  at  least  substantially  mitigates  the 
systemic  risks  that  were  identified  during  the  global  financial  crisis  and 
during the Eurozone crisis. 

It equally remains to be seen whether the ECB and the national supervisors, 
on the one hand, and EU and national courts, on the other, will depart from 
the traditional ways of furthering European integration to the extent that the 
SSM-R invites them. Indeed, as shown earlier, it is likely that the ECB will 
rely as much as possible on EU law when exercising its supervisory powers. 
This  approach,  while  perhaps  blurring  the  variation 
in  national 
implementations of EU law and the options and discretion left to Member 
States, would nevertheless allow for more clarity, and thus legal certainty, and 
would  be  more  consistent  with  the  principles  of  non-discrimination  and 
equal treatment. The  sustainability of the system also strongly depends  on 
how the ECB will apply these rules in practice and how national supervisors 
cooperate  with  them.  Similarly,  the  EU  and  national  courts  will  play  a 
significant role: it remains for them to establish a clear path to the otherwise 
complicated  system  of  judicial  review  stemming  from  the  SSM-R,  for 
example through broad interpretation of the competence conferred to the 
ECB  or  broad  application  of  the  direct  effect  principle.  In  other  words,  it 
remains to be seen to what extent the various actors involved will make use of 
the  tools  traditionally  used  to  further  European  integration.  Provided  that 
supervisors and courts cooperate, it is possible that, in practice, the SSM will 
ultimately  share  more  features  with  the  direct  execution  of  EU  law  model 
than it does under a literal interpretation of the applicable legal provisions.