Why do lower courts refer in the absence of a legal obligation? Irish eagerness and Dutch disinclination

Date01 December 2019
AuthorJasper Krommendijk
Published date01 December 2019
Subject MatterArticles
Why do lower courts refer
in the absence of a legal
obligation? Irish eagerness
and Dutch disinclination
Jasper Krommendijk*
The majority of requests for a preliminary ruling from the EU Court of Justice comes from lower
national courts. This is surprising because such courts are, contrary to the highest national courts,
not obliged to refer on the basis of Article 267 TFEU. This article examines why Dutch and Irish
lower courts have decided to refer or not in the absence of such a legal obligation. It does so on the
basis of an analysis of court decisions complemented with 45 interviews with judges and legal
secretaries. The article shows that there is a wide variety of reasons (not) to refer, including
pragmatic and practical considerations. Politico-strategic reasons play a smaller role than one
would expect on the basis of the literature to date. The most important factor affecting the courts’
willingness to refer is the way in which lower court judges see their role in relation to the highest
court(s). This factor also explains the difference between Ireland and the Netherlands. While most
Irish references are made by lower courts, around two thirds of the references in the Netherlands
stem from the highest courts. Most Irish judges adopted a ‘better sooner than later’ logic, while the
majority of Dutch judges emphasized that the highest courts have more time and expertise.
Preliminary ruling procedure, national courts, dialogue, European Court of Justice, interviews with
judges, motives to refer, pragmatic adjudication, politico-strategic reasons
* International and European law, Radboud University Nijmegen, Nijmegen, Netherlands
Corresponding author:
Jasper Krommendijk, International and European law, Radboud University Nijmegen, Montessorilaan 10, 6500 KK
Nijmegen, Netherlands.
E-mail: j.krommendijk@jur.ru.nl
Maastricht Journal of European and
Comparative Law
2019, Vol. 26(6) 770–791
ªThe Author(s) 2019
Article reuse guidelines:
DOI: 10.1177/1023263X19871024
I. Introduction
When it comes to the interaction between the EU’s Court of Justice (CJEU) and national courts, the
highest (constitutional) courts in Member states get most of the attention. The majority of refer-
ences are, however, made by lower courts. Their references have often led to landmark judgments
of the CJEU, such as Costa/ENEL or Francovich.
This poses an interesting puzzle: How can it be
explained that lower courts refer even though they are not obliged to do so on the basis of Article
267 TFEU? Article 267 provides that such lower courts ‘may’ refer questions on the interpretation
and validity of EU law, while ‘a court or tribunal of a Member State against whose decisions there
is no judicial remedy under national law’ ‘shall’ refer. The only exception to this discretion to refer
is the rather exceptional situation in which the validity of EU law is at stake.
The literature to date has primarily emphasized strategic motives to refer explaining that lower
courts use the CJEU to get support vis-`a-vis the highest courts or the legislature. The preliminary
reference procedure thus gives the opportunity to ‘leapfrog’ the national judicial hierarchy.
Or it
provides a ‘sword’ for courts to challenge possible breaches of EU law in legislation.
In addition
to this one-sided focus on strategic motives, the literature to date has also accentuated differences
between member states and sought explanations for this by means of mostly quantitative research.
This article will show, firstly, that there is a wide variety of motives informing the lower court’s
decision (not) to refer.
Secondly, differences within member states are just as important, or even
more important, than differences between member states. This article will substantiate this on the
basis of a qualitative research on the motives of lower court judges to refer in two Member States:
the Netherlands and Ireland. The article combines an analysis of court decision to refer and not to
refer with 45 interviews with judges and legal secretaries involved in those decisions.
2. Research design
A. Methodology
In order to answer the research question, all Dutch and Irish references made in the period
2013-2016 were studied.
This includes the national court’s decision to refer, the CJEU
judgment together with a possible Advocate General Opinion and the follow-up judgment of the
national court. In addition, for the same period, all lower court’s decision not to refer have been
1. Case 4/64 Costa/ENEL, EU:C:1964:66; Joined Cases C-6/90 and C-9/90 Francovich, EU:C:1991:428.
2. Case 314/85 Foto-Frost, EU:C:1987:452.
3. K.J. Alter, ‘Explaining national court acceptance of European Court jurisprudence: A critical evaluation of theories of
legal integration’, in A.M. Slaughter, A.S. Sweet and J.H.H. Weiler (eds.) The European Courts and National Courts
(Hart, 1998).
4. J.H.H. Weiler, ‘A Quiet revolution: The European Court of Justice and its interlocutors’, 26 Comparative Political
Studies (1994), p. 523; J. Golub, ‘The politics of judicial discretion: Rethinking the interaction between national courts
and the European Court of Justice’, 19 West European Politics (1996), p. 377-379.
5. E.g. M. Wind et al., ‘The uneven legal push for Europe: Questioning variation when national courts go to Europe’, 10
European Union Politics (2009).
6. Compare: E. Fahey, Practice and Procedure in Preliminary References to Europe: 30 years of Article 234 EC case law
from the Irish courts (First Law, 2007), p. 3-5.
7. The limited time period does not mean that older or more recent cases and developments are excluded, but simply that no
structured database search was conducted outside this period. In order to prepare the interviews, judgments and other
relevant developments prior to 2013 and after 2016 have been considered as well.
Krommendijk 771

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