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.
Recent cases of national court rebellion against the rulings of the Court of Justice have raised questions about the meaning of judicial cooperation within the preliminary reference procedure. Although tensions are inevitable, the trust of Member State judiciaries is crucial for the dissemination and enforcement of the Court’s rulings. This paper uses legal empirical method to study how the Court cultivates its relationship with national courts, with a specific focus on rulings that conflict with the referring courts’ view on how the questions ought to be resolved. The findings indicate that disagreement with the referring court affects the Court’s drafting and justification choices. The paper identifies two strategies that the Court resorts to when rejecting the view taken by a referring court: conflict avoidance and appeal to (illegitimate) authority. It is argued that these strategies are not conducive to furthering the judicial cooperation that the Court claims to be engaged in.
The preliminary ruling mechanism (PRM) is the ‘infringement procedure of the EU citizen’, as it offers individuals the possibility to take their claims to the Court of Justice. At the same time, the mechanism ensures the uniformity of EU law. This twin purpose determines the existence of two different disputes in the mechanism (‘original dispute’ and ‘EU dispute’), which are reflected in the structure of the PRM. The paper argues that this structure affects the level of protection that the mechanism can grant individuals. To empirically investigate this issue, the paper first builds an analytical framework to explore the outcomes for each dispute in the PRM. Then, it unpacks the different structural elements of the mechanism, and identifies any traces of the individual and her claim in the structure. Through this analysis, the paper assesses the possibilities and limitations of the PRM and evaluates the individuals’ real role in the mechanism.
This paper analyses the phenomenon of deference to Member State courts from an empirical perspective, focusing on the field of free movement law. Drawing on an original data set of ECJ rulings on the four freedoms, it looks into how frequently the Court of Justice delegates decisions to its national counterparts, and which ones. The results reveal that the role of Member State judges has grown both quantitively and qualitatively over time. The paper investigates potential reasons for this development, which range from the maturing of the European legal order, to increases in the ECJ’s workload, to improvements in compliance at the domestic level. It also addresses the consequences for the unity of EU law and the idea of cooperation which underlies the preliminary references system.