Reversing the Lens: In National Judiciaries the CJEU Trusts? Insights from EU Migration and Asylum Law

Reversing the Lens: In National Judiciaries the CJEU Trusts? Insights from EU Migration and Asylum Law Trust and distrust have been explored as drivers influencing the choices of national courts in the preliminary ruling procedure, that is, whether to hand over the case to the Court of Justice of the European Union (CJEU). This article proposes a novel account by reversing the roles to explore the CJEU’s trust and distrust in national judiciaries. While the reliance on national courts is inherent in the decentralised system of European Union (EU) law enforcement, the CJEU can impose significant limitations on national courts’ discretion in the application and enforcement of EU law. Trust and distrust in national judiciaries reflect the CJEU’s effort to reconcile averting claims of judicial activism with safeguarding the rule of law and promoting further European integration. Drawing on earlier literature on trust and distrust between judicial actors in Europe, this article conceptualises the CJEU’s trust and distrust in national judiciaries. It also establishes an analytical framework for analysing them through identifying trust-related considerations in the CJEU’s preliminary rulings: the intensity of interference with national procedural autonomy, the frequency of the use of deference to national courts, and the rigidity of the assessment of judicial independence. Zooming into the CJEU’s case law in a highly politicised area – EU migration and asylum law – suggests a shift from trust to distrust in national judiciaries. Having exposed vulnerabilities of Member States’ judicial structures, the rule of law and migration crises put into question the trustworthiness of national judiciaries and invite rethinking the judicial architecture of the EU.