The Preliminary Reference Process

Abstract

A B S T R A C TLitigant desistment, i.e. voluntary litigant implementation of an ECJ ruling in a preliminary reference case that preempts the necessity for a national court decision, is a commonyet often overlooked -strategic behavior new to the study of the ECJ, national courts and the preliminary reference process. The hypotheses directed at predicting and investigating when such litigant behavior occurs are an outgrowth of the 'implementation prejudice' that national courts will overwhelmingly apply ECJ decisions in their rulings, which changes the opportunity structures of litigants. Understanding when litigants desist not only expands general knowledge concerning the underinvestigated implementation stage but also arguably could have important implications for our understanding of the evolution of 'high' court legitimacy.

Activism relocated. The self-restraint of the European Court of Justice in its national context

“…That is unsurprising: it is hard for the Court to contradict the national court on such factual matters. To do so creates the risk that the national court will 'evade' application of the Court's answer by reinterpreting the facts (Nyikos 2003), or, worse, that the national court will claim that the ECJ has exceeded its jurisdiction (Arnull 2003). This famously happened in Arsenal v Reed, where an English judge refused to follow part of an answer from the Court, because it concerned the facts and was, in his view, outside the Court's jurisdiction (Arnull 2003;Davies 2003).…”

“…Where norms are uncertain and the law is unclear, there may therefore be a tendency among regulators to act defensively and take pre-emptive 'restabilizing' measures to avoid legal challenge. However, it should be noted that since such legal challenge primarily takes place in national courts, the foundation for such defensive behaviour is a perception that national judges are in sympathy with the Court of Justice and are unlikely to find justifications to save national measures where these impede EU goals (Nyikos 2003). If regulators are confident that the national judiciary will take a limited view of EU law, then they will be emboldened to do so themselves.…”

The European Court of Justice and the judicialization of EU governance

“…Living Reviews in European Governance http://www.livingreviews.org/lreg-2010-2 consistent application of Community law within national legal orders. With constitutionalization, Article 267 became a kind of central nervous system for the regime, helping to organizing legal, economic, and political integration (Burley and Mattli 1993;Stone Sweet 2004), as well as a series of complex "dialogues" between the ECJ and national courts (Alter 2001;Conant 2002;Kumm 1999Kumm , 2005Nyikos 2003Nyikos , 2006Slaughter, Stone Sweet, and Weiler 1998;Weiler 1994). The social science on the Court's impact through Article 267 is more intensive and systematic than the social science on Articles 258 and 263.…”

“…The findings "bring into question the assertion that the ECJ is more likely to withhold adverse rulings, the higher the domestic costs associated with such a ruling" (Cichowski 2007: 88). Nyikos (2003) also analyzed every preliminary ruling rendered in three legal domains: free movement of goods, free movement of workers, and sex discrimination. Among other important contributions (see Section 6.1), she found that, although Member States were parties in 86% of the cases that generated preliminary references, their amicus observations were largely ineffectual in influencing the decision-making of either the ECJ or national judges.…”

“…There has been virtually no quantitative research in the area of national compliance with ECJ rulings, with the exception of Nyikos' (2003; seminal work on inter-judicial dialogue within the Article 267 procedure. Nyikos (2003) analyzed all references in three legal domains -free movement of goods, free movement of workers, and sex discrimination -and traced their various effects on latter stages of the process. She found that national judges regularly signal (in 38% of cases) to the ECJ the answer they hope to obtain; such signaling has risen over time, and is highest among judges who use the procedure repeatedly.…”