Why National Courts (Do Not) Refer Preliminary Questions to the CJEU

In the interaction between the national courts and the CJEU through the preliminary ruling procedure, the initiative lies with the national courts. Therefore, the success of this interaction eventually depends on their willingness to refer preliminary questions. Several recent high-profile cases have indicated that this willingness is not self-evident. Little is known, however, about the exact motives of national courts when deciding whether to make a preliminary reference. This paper examines these motives with a focus on the variation in the approaches of the different national courts. The findings are based on case law analyses combined with semi-structured interviews in four varying fields of law – asylum, consumer, competition and criminal law – in the Netherlands, Austria and Germany. Ultimately, the aim is to asses to what extent factors such as distrust and dissent on the side of the national courts hinder a cooperative judicial dialogue.