Rechtsprechung ohne Fall

The preliminary ruling procedure according to Art. 267 TFEU has since its introduction remained without significant institutional reforms. As an instrument intertwining EU and domestic legal and judicial systems, it has been an important transmission belt of European integration. As such, the referral procedure generally enjoys a good reputation among legal scholars. Contrary to this prevalent view, the article focuses on a conceptual characteristic of the preliminary ruling procedure that is increasingly proving to be a fundamental design flaw as integration progresses: Preliminary rulings produce a large body of case law without any cases. This leads to a deficient overall process of judicial concretization and development of EU law and, in part, to a shift in the constitutional balance of powers. At the same time, the referral mechanism is likely to alienate national courts from EU law, because they do not have to and are not allowed to treat it with the same degree of sovereignty and independence as they may treat domestic law. The referral mechanism thus turns from an instrument of integration into a disintegrating factor. However, this flaw of the preliminary reference procedure is not unavoidable and without remedy. Its effects can be kept at bay by some adjustments in judicial practice both of the referring courts and the ECJ. The article concludes with some suggestions to this effect.