Publication details
Revisiting the Deliberative Potential of Judicial Dialogue: The Subtle Influences of National Courts in the Article 267 TFEU Preliminary Reference Mechanism
| Authors | |
|---|---|
| Year of publication | 2026 |
| Type | Peer-reviewed scientific article |
| Magazine / Source | European Journal of Legal Studies |
| MU Faculty or unit | |
| Citation | |
| web | https://cadmus.eui.eu/entities/publication/92eb95f1-3b7e-428d-bd86-e01ed9fbcfe9 |
| Doi | https://doi.org/10.2924/EJLS.2026.006 |
| Keywords | judicial dialogue, Article 267 TFEU mechanism; preliminary reference procedure; European Court of Justice; ECJ; Member State courts; deliberative potential |
| Attached files | |
| Description | This article interrogates the deliberative potential of judicial dialogue: it argues that the Article 267 TFEU preliminary reference procedure enables Member State courts to subtly influence the EU decision-making in ways that can enhance the democratic legitimacy of the EU’s functional constitution. While the principal-agent and team models represent partially useful theoretical frameworks for conceptualising the Article 267 TFEU mechanism, both ultimately reinforce the prevailing ‘monologue’ criticism that reduces the procedure to a one-dimensional, bilateral interaction confined to an individual case. In our view, it is overly reductive to presume that national judges can significantly influence the content of EU law only if the ECJ explicitly engages with their input in its rulings. In response, our communicative discourse model offers an attractive imaginary to understand national courts’ ability to shape EU law. When asking questions, domestic judges can subtly — yet meaningfully — affect many stakeholders of the European integration in a rather indirect manner. In particular, the article identifies three main types of latent impact: agenda-setting, systemic signalling, and jurisprudential contestation. In doing so, the article revives the ideal of the EU’s democratic legitimacy by foregrounding the deliberative capacities of its judicial architecture. |
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