Raising the Bar: The Development of Docket Control on the Court of Justice

Abstract

We examine the emergence and evolution of docket control mechanisms in the preliminary ruling procedure. Using both legal and statistical analysis, we show that reasoned orders have increased dramatically since the mid-1990s, with courts in Italy and Central and Eastern member states being the most frequent targets. We argue that the trajectory of the European Court of Justice's docket policy is an indirect manifestation of its ascendant position as Europe's judicial powerhouse. Facing a rising caseload, the Court has sought to optimise the allocation of its resources by applying stricter admissibility criteria and by prioritising references raising novel legal issues. For domestic courts, this evolution means that references must satisfy higher standards of quality and originality, although the application of these standards is itself influenced by the size of the Court's backlog at the time of submission.

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

“…Dyevre et al, for example, found that the Court's increasing practice of using reasoned orders is a strategic way of controlling its docket. 71 Similar views have been expressed by Advocate General Bobek, who questioned the need of having all preliminary questions referred to the ECJ over worries how the Court's workload may affect the quality and efficiency of justice. 72 These interviewees are well aware of the formal rules whereby courts of final instance are obliged to refer questions regarding the interpretation of EU law while lower courts may do so if they want to.…”

That's an Order! How the Quest for Efficiency Is Transforming Judicial Cooperation in Europe

“…The most comprehensive empirical treatment of the CJEU's use of orders so far is that by Dyevre et al . (2021). See also Dyevre et al ., 2022).…”

“…See also Dyevre et al ., 2022). They argue that the Court has become more restricted over time – as the supply of references has grown – in terms of which questions they afford with a judgment, and that orders have increasingly been used as ‘a type of resource management mechanism’ (Dyevre et al ., 2021, p. 564). They also demonstrate a systematic statistical relationship between the proportion of preliminary references ending in an order and the number of cases waiting on the Court's docket.…”

“…The intention was to free the Court from legally uninteresting questions, allowing it to focus on more important and pressing legal issues. In the early 2000s, the delays in the preliminary reference procedure reached a peak, with proceedings of more than 700 days on average (Dyevre et al ., 2021, p. 566).…”