In this chapter the research question is answered but, more importantly, three scenarios as sketched concerning the way to move forward: cooperation, coordination, and collaboration. The cooperative scenario is an informal inter-organisational relationship lacking a common mission, structure or joint planning but focuses mostly on improving the current information exchange, for example, by the publication of more (translated) documents and enhancing current digital platforms. In the coordination scenario the CJEU and Supreme Administrative Courts are going to work together more actively to advance their separate, yet compatible missions to advance the working of the preliminary reference procedure via more formalized communication channels and a more active role for national courts, for example, as amicus curiae. In the third scenario, national Supreme Courts become European courts and not only from the receiving end. They will be given a more prominent role in filtering, synthesizing and distributing preliminary questions from lower courts and become decentralized EU courts dealing with most bulk cases that currently fill the docket of the CJEU. This would enable the Luxembourg court to develop into a real constitutional court of the EU with less attention for dispute resolution and more attention for judicial law making.

Our case law analysis reveals that and how it takes two to tango in terms of organizing a dialogue. From the side of the referring courts closed-questions may force the CJEU to yes or no answers. The same holds true for compatibility questions asking the Court where a national laws are in compliance with EU law while the procedure is not meant to “solve” these problems. A positive way to stimulate dialogue with the CJEU by the referring court could be to make use of the possibility to offer provisional answers to the questions being referred. However, this only works when the CJEU explicitly responds to these answers. The CJEU can also discourage dialogue by reformulating questions in a way that makes the legal problem become unrecognizable to the referring court without issuing a request to the referring court to clarify the questions first. With respect to compatibility questions, the CJEU sometimes almost seems to operate as an appellate court trying to protect citizen’s right by taking over the responsibility of national courts. At the same time, though, the Court shows little interest in what happens with preliminary rulings in the aftermath of its decision.

Our interviews reveal that most judges from the CJEU and Supreme Administrative Courts realize there is at the moment little room for a dialogue that goes beyond one party asking questions and the other party answering them. Procedural mechanisms that could be used to facilitate a dialogue between both courts, such as: requests for clarification, provisional answers and leaving more leeway for highest courts to scrutinize potential preliminary questions before they are send to the CJEU, are relatively unpopular. A better “horizontal dialogue” between national courts before referring questions to the CJEU is considered useful by all parties but is troubled by language barriers, time constraints, and a failing communication infrastructure. Although better informed questions in combination with provisional answers could enhance the “vertical dialogue” with the CJEU, certainly not every judge is looking for this. We discovered major differences between on the one hand the judge-lawmaker, who wants to influence the way EU law is interpreted and the judge-arbiter, who is primarily focused on settling disputes. The latter judges feel the CJEU is better equipped to develop the course of EU law, while the former judges believe that in a multilevel legal order, this should be a mutual responsibility.

This chapter provides an overview of the debate on the idea of a judicial dialogue, in particular with regard to what this concept could mean for the preliminary reference procedure. It shows that ‘dialogue’ means different things in different contexts but almost never does there seem to be an actual exchange of ideas and opinions between courts about what is supposed to be a correct interpretation of the law. Sometimes courts are referring to each other’s case law to borrow arguments or study the impact of a certain choice of law in another jurisdiction but closer forms of cooperation and collaboration are quite rare. What most inter-judicial communications have in common, though, is a quest for legitimacy. This could also be the purpose of dialogue in the preliminary reference procedure (1) by offering input from national courts to the CJEU in order to come up with the best-reasoned interpretation of EU law; (2) by providing a platform for participation in the process of judicial law making for all the member of the interpretative community and( 3) thereby building a common identity between the EU and national legal orders which is necessary in a multilevel and pluralist legal order.

This chapter is setting the scene for the research. It starts from the astonishment that on the one hand the CJEU time and again underlines the dialogical nature of the preliminary reference procedure, while there are very view visible signs of an actual exchange of views and preparedness to share responsibility. What does this mean? Is there actually a judicial dialogue between the CJEU and highest administrative and, if not, why would the latter accept that their relationship is presented in terms of a shared responsibility and mutual cooperation? Answers to these questions are sought through a study of the literature on judicial law making, a case law analysis and interviews with judges. To this end we analytically split the research up in three phases: interaction before a preliminary question is submitted, during the procedure in Luxembourg and after the CJEU has ruled. Moreover, we explain why the focus lies on “regular” Supreme (Administrative) Courts instead of constitutional courts, which have dominated the debate on judicial dialogues so far.

Drawing up the balance from the literature, case law, and interviews, one must conclude the communication between courts in the preliminary reference procedure does not represent a dialogue going (much) beyond one side asking questions, while the other side tries to answers them. Procedural mechanisms in the procedure that could enhance cooperation and communication are scarcely used to facilitate co-actorship. There are not only practical reasons for this. The lack of dialogue also partly results from a lack of faith in each other’s competence, reliability, and intentions. CJEU judges sometimes lack faith in the competence and reliability of national highest courts and do not seem to believe in the idea that national highest courts could actually provide an authoritative opinion about the correct interpretation or validity of EU law. Judges from Supreme Administrative Courts, on the other hand, are sometimes frustrated that the CJEU does not seem willing to listen to their explanation of the facts of a case, to their concerns about the potential consequences of preliminary rulings and to their views on how EU law should be interpreted. Few judges, however, seem to feel the need to openly express their discomfort, because it could also make things worse.