Davies, Gareth --- "Abstractness and concreteness in the prelimiary reference procedure: implications for the division of powers and effective market regulation" [2006] ELECD 415; in Shuibhne, Nic Niamh (ed), "Regulating the Internal Market" (Edward Elgar Publishing, 2006)

Book Title: Regulating the Internal Market

Editor(s): Shuibhne, Nic Niamh

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845420338

Section: Chapter 8

Section Title: Abstractness and concreteness in the prelimiary reference procedure: implications for the division of powers and effective market regulation

Author(s): Davies, Gareth

Extract:

8. Abstractness and concreteness in the
preliminary reference procedure:
implications for the division of powers
and effective market regulation
Gareth Davies1

INTRODUCTION
Community law is enforced by two sets of courts; those of the Member States,
and those of the Community. The rhetoric surrounding this is of co-operation.
Nevertheless, any sharing of function is also a sharing of power, and unless the
boundaries are permanently fixed, there will also be the potential for competi-
tion. That may be more apparent, and more discussed, in the context of the
other organs of government; the two sets of civil servants, in national ministries
and the Commission, the two sets of parliamentarians, and the cabinet-like
Council and its national equivalents. However, it is also true of courts.
It is true that courts are different: unlike other organs, they do not directly
reflect the current will of government or parliament, and this means that the
division of powers here is less obviously a democratic or political issue.
However, in a careful sense of both those words, it clearly is. Courts reflect the
societies in which they sit, and are formed by them. They are another branch
of democracy, another way of reflecting the people, and, of course, all power
is political.
As a consequence, courts have a dual role in the allocation of competences
in the Community. They adjudicate it, but they are also an important part of it.
They must decide, but they must also decide whether they should decide. This
...