The role of the judiciary and the future of the ECJ were not given prominence in the workings of the European Convention. This is further borne out by the fact that in outlining the responses of the Constitutional Convention to the Laeken declaration, the preface to Parts I and II of the draft Constitution states that the Constitution "establishes the necessary measures to improve the structure and enhance the role of each of the Union's three institutions, taking account, in particular, of the consequences of enlargement". The reason for this omission of any reference to the ECJ is that the Laeken declaration identified themes and challenges which were mainly political in nature and, consequently the focus was on the political institutions of the EU. In addition, the workings of the ECJ and the future of its judicial architecture had been extensively considered in the Treaty of Nice. Hence, it was thought to be unnecessary to consider these issues once again.
Jurisdictionally, the ECJ's role is limited to providing clarification to EU Law, referred to it by the National Courts. The competence and power to make factual determinations, application of the law to the facts of the case and finding remedies are vested with the National Courts. The ECJ's supremacy in respect of issues involving the EU Law is accepted by the National Courts; however, the ECJ depends on these very same National Courts to implement its recommendations and rulings. It is here that the National Courts covertly interpret the ECJ Rulings to their advantage. In this manner the ECJ is compelled to engage in a cajolatory and conciliatory relation with the National Courts to achieve compliance with its rulings.
The European Union's basic principle of federalism is defined by the principle of subsidiarity. The European Court of Justice has to adopt this principle in its rulings. The Maastricht Treaty of 1992 has bestowed upon this principle of subsidiarity the status of a fundamental norm of the European Union. This principle requires the Community to act whenever; the Member States are not able to achieve the objectives of some proposed action, due to the enormity of the relevant factors involved and the like. This principle further has a normative quality in respect of politics and as expressed in the preamble to the Treaty of the European Union it requires decisions to be taken with as much proximity to the individual citizens as possible.
The consequences of the principle of subsidiarity are not yet settled, although it has been confirmed that this principle can be implemented in law, the ECJ has to instil this principle with sufficient substantive content. Even though the ECJ is not legally bound by subsidiarity, all the same it has to take cognizance of the Constitutional values which this principle encompasses.
The division of judicial roles under Article 234 embodies judicial subsidiarity in which responsibility for decision making is allocated between the National Courts and the ECJ, according to comparative institutional expertise. The ECJ has numerous reasons to defer action on any matter. The ECJ is at liberty to interpret the law in a manner, which is based on factual issues by generalizing (Marschall). However, such rulings rest on unsubstantiated assumptions, which are incompatible with