101
Second working session — The impact
It may be too ‘simple’, though, to describe those cases as involving the ‘sim-
ple interpretation’ of EU law norms. In fact, the reason why national courts
are faced with problems of interpretation which they decide to submit to the
CJEU is, most often, because EU law has changed the legal situation, or at
least appears to have changed that situation, so that the national court finds
itself in an unfamiliar legal landscape and needs help. Let us take for example
the series of preliminary references relating to the passenger compensation
rights for delays in arrival of air flights. As we can see, for example, in a recent
judgment within that series (
20
), the German court asks a number of ques-
tions about the correct interpretation of the directly applicable Regulation No
261/2004 on compensation and assistance to passengers. Nowhere, either in
the reference or in the judgment of the CJEU, is there any mention of German
legislation, so that this may seem purely a matter of assessing the meaning of
an EU law norm. And yet, the controversy caused by this case law, and the
repeated references sent by a number of courts from different countries (
21
),
shows that something more is happening, namely the displacement of prac-
tices that were lawful (or at least uncontested) under pre-existing national law,
by means of a new piece of EU legislation.
As I mentioned above, ‘pure interpretation without looking at compatibil-
ity’ was arguably the sole function which the drafters of the EEC Treaty had in
mind when ‘inventing’ the preliminary reference mechanism. That function
has not disappeared but its importance is rather limited today. In fact, the
small number of pure interpretation rulings gives us an approximate idea of
the limited role the preliminary reference mechanism would have acquired if
the Court of Justice had not radically transformed the role of that mechanism
through its
Van Gend en Loos
judgment. By opening its gates to questions
about the compatibility of national law with EU obligations, the Court has im-
mensely increased its own work-load, but also immensely increased its impact
on the way in which the Member States, and their citizens, comply with their
European legal obligations...
(
20
) Case C-11/11,
Folkerts, ,
judgment of 26 February 2013.
(
21
) See S. Garben, ‘
Sky-High Controversy and High-Flying Claims? The Sturgeon Case Law in
Light of Judicial Activism, Euroscepticism and Eurolegalism
’,
Common Market Law Review
(2013) 15.
