Choosing for Europe: judicial incentives and legal integration in the European Union

Abstract

We investigate the factors inuencing the choice of domestic judges to pass on cases to the Court of Justice of the European Union. While EU judicial scholars have typically relied on integration theory or ad hoc theories of adjudication to explain referral activity, our theoretical framework draws on general judicial decision making theory and focuses on the incentives and constraints national judges face when deciding whether to submit a references to the Court of Justice. Consistent with our rationalist account of judging, we nd empirical evidence that the rate at which national courts refer cases is inuenced by familiarity with EU law, powerseeking motives and political fragmentation.

Why passive? Exploring national judges’ motives for not requesting preliminary rulings

“…Finally, the sustained resistance explanation suggests that national judges refrain from requesting preliminary rulings out of a desire to defend national policies and slow the pace of EU legal integration. 21 Similarly, Volcansek, 22 Carrubba and Murrah 23 and Dyevre and Lampach 24 argue that the refusal of national judges to refer cases to the ECJ can be understood in terms of their negative sentiment towards European integration and their preferences for national law. While all of these three explanations have merit, they have also been criticized on empirical and theoretical grounds.…”

Chilling or Learning?

“…We control for covariates of referral activity considered in previous studies: familiarity with EU law (Hornuf and Voigt, 2015;Lampach and Dyevre, 2020), monism (Carrubba and Murrah, 2005), support for EU membership (Carrubba and Murrah, 2005), intra-EU trade (Stone Sweet and Brunell, 1998;Carrubba and Murrah, 2005), GDP (Vink et al, 2009) and enlargement (Wind et al, 2009;Lampach and Dyevre, 2020). We also control for peak court.…”

“…For reasons pointed to above, a higher resource/caseload ratio implies that courts higher up in the judicial hierarchy have a greater capacity to produce high-quality references, which may make them less prone to formal dismissals. Our second control is familiarity with EU law, for which length of membership in the EU is a proxy (Lampach and Dyevre, 2020). Judges in member states that have been in the EU for a longer period of time, are more likely to have received EU law training, to have presided over disputes involving EU law arguments and to know the ECJ's case law.…”

Domestic Gatekeepers or International Enforcers? National Courts’ Engagement with Decisions of International Human Rights Courts and Treaty Bodies

“…154 Other judges feel, by contrast, discouraged to engage with EU law because they are afraid to make mistakes with negative consequences for their reputation. 155…”