Trust Issues? Article 99 RoP Reasoned Orders in the Preliminary Reference Procedure

This article explores reasoned orders issued by the Court of Justice (the Court) to reply to preliminary references of the national courts in the procedure for a preliminary ruling of Article 267 TFEU. Reasoned orders allow the Court to reply in a swiftly manner to preliminary references that raise no doubts. Concretely, Article 99 of the Rules of Procedure of the Court of Justice (RoP) state that the Court might issue a reasoned order in lieu of a judgment when the preliminary questions asked are identical to previous questions; if the reply clearly follows from the existing case law; or if the answer admits no reasonable doubt. If any of these three conditions occurs, the Court might decide to reply by reasoned order, dispensing in that way with some of the procedural hurdles that replying with a judgment would entail, like waiting for the Advocate General in the case to deliver an Opinion. Put simply, reasoned orders might be issued to reply to preliminary references when the Court considers EU law to be 'clear', either because the Court has previously established the meaning of a EU provision, or where the question asked is obvious. The issue then becomes when EU law can be considered to be 'clear'. Even if indeterminate, the concept of 'clear' EU law is not unknown in the case law of the Court of Justice. Most famously, the Court coined the CILFIT doctrine, which allows national courts of last instance to not submit a question where the answer 'admits of no doubt', thus dispensing with their obligation to refer under Article 267(3) TFEU. In this sense, reasoned orders of Article 99 RoP work as a reversed CILFIT, where the Court, not the national courts, establishes when the answer to a EU question admits of no doubt. In this way, reasoned orders are a good window into what the Court considers to be settled EU law. This article argues that they are also good proxies to reflect on the operation and creation of trust between the Court and the national courts and tribunals. The article posits that reasoned orders allow to research trust between the Court and national courts. They not only allow considering the perspective of the Court in what it considers clear EU law, or that a EU question is settled, but also how the Court relates to the arguments and answers proposed by the national courts. Similarly, reasoned orders are a window into how national courts perceive their relationship with Luxembourg, and what they expect from it.This article looks at the use of reasoned orders as proxies of trust, and thus contributes to the research on trust in a multilevel judicial system. To this end, it analyzes all Article 99 orders issued by the Court of Justice during two full years (2020 and 2021). This comprises 82 reasoned orders, neatly divided in the two years. The size is similar to the number of orders published by the Court in the two years after. In particular, the article is concerned with what can be learnt from studying orders about the Court's trust on its national counterparts, and of the latter in the Court. To do so, it identifies the aspects of the orders for reference (OfR) and the reasoned orders that serve to investigate this reciprocal trust.The article proceeds as follows. Section 2 explains what are reasoned orders, and how they are regulated in the Rules of Procedure of the Court of Justice. Section 3 explores the limited literature on reasoned orders, and uses it to hypothesize how orders can shed light on the Court's trust on national courts, and vice versa. The empirical materials are presented in Section 4, analyzed in Section 5 and discussed in Section 6. The last Section concludes with a reflection on how reasoned orders could be used to further enhance trust.