The Preliminary Reference Process
| Author | Stacy A. Nyikos |
| Published date | 01 December 2003 |
| Date | 01 December 2003 |
| DOI | http://doi.org/10.1177/146511650344002 |
| Subject Matter | Journal Article |
The Preliminary Reference
Process
National Court Implementation,
Changing Opportunity Structures and
Litigant Desistment
Stacy A. Nyikos
University of Tulsa, USA
ABSTRACT
Litigant 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 common –
yet often overlooked – strategic behavior new to the study
of the ECJ, national courts and the preliminary reference
process. The hypotheses directed at predicting and investi-
gating 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. Under-
standing when litigants desist not only expands general
knowledge concerning the underinvestigated implemen-
tation stage but also arguably could have important impli-
cations for our understanding of the evolution of ‘high’ court
legitimacy.
397
European Union Politics
[1465-1165(200312)4:4]
Volume 4 (4): 397–419: 038136
Copyright© 2003
SAGE Publications
London, Thousand Oaks CA,
New Delhi
KEY WORDS
European Court of Justice
legitimacy
litigant desistment
national courts
preliminary reference
process
02Nyikos (bc/t) 14/10/03 8:22 AM Page 397
Introduction
A variety of studies argue that the European Court of Justice (ECJ), through
the preliminary reference process, has transformed the legal order in the
European Union (EU) (Stein, 1981; Weiler, 1994; Stone Sweet and Brunell,
1998a; Alter, 2001).1Critical to this argument is the assumption that ECJ
rulings are implemented by national courts. However, we have very little
systematic evidence showing that this occurs. Thus, a fundamental assump-
tion lacks clear empirical support. Furthermore, because there has been so
little research on implementation of ECJ rulings, very little is known about
who implements or how rulings are implemented.
This article provides insight into these, as well as other, implementation
issues. First, the article presents systematically collected data measuring the
incidence of national court implementation of ECJ rulings. This evidence
supports the ‘implementation prejudice’ assumed in the literature: ‘There is
a habit of obedience to Community law’ (Mestmäcker, 1994: 623). However,
and second, the data reveal that ECJ preliminary reference decisions are not
predominantly implemented only by national courts. Instead, the findings
reveal that almost half of ECJ rulings are implemented at the national level
through voluntary actions on the part of litigants. This project examines the
conditions under which such désistement des parties (litigant desistment)
occurs. This important finding demonstrates that it is necessary to investigate
litigant behavior if we wish to understand how ECJ rulings are implemented.
Consequently, and third, the primary focus of the article is upon explaining
and predicting litigant desistment.
It is hypothesized that litigants’ decision to desist is a function of their
opportunity structures, which are determined by litigant knowledge concern-
ing potential national court verdicts. If litigants can be relatively certain that
a national court will implement the decision of the ECJ, then they should take
the opportunity, based upon this knowledge, to preempt the costs of time and
money that are directly related to awaiting a national court decision follow-
ing the ECJ’s ruling and voluntarily implement the said ruling themselves.2
The first section of the paper explains the process under investigation –
the preliminary reference procedure. The next develops hypotheses concern-
ing the conditions under which litigant desistment should be more likely to
occur. The following sections introduce newly collected data on implemen-
tation and the results of statistical analysis of the hypotheses regarding desist-
ment. The paper concludes by discussing the implications of the results for
our larger understanding of the preliminary reference process and the
measurement and study of ‘high’ court legitimacy.
European Union Politics 4(4)
398
02Nyikos (bc/t) 14/10/03 8:22 AM Page 398
To continue reading
Request your trial