Why passive? Exploring national judges’ motives for not requesting preliminary rulings
| DOI | 10.1177/1023263X221091768 |
| Date | 01 April 2022 |
| Published date | 01 April 2022 |
| Subject Matter | Articles |
Why passive? Exploring
national judges’motives
for not requesting
preliminary rulings
Karin Leijon* and Monika Glavina**
Abstract
This article explores why national judges remain passive on EU legal integration by examining
judges’reasons for not requesting preliminary rulings from the European Court of Justice
(ECJ). The article combines insights from social psychology and literature on the role of national
courts in European integration to formulate expectations regarding what type of motives guide
national judges’behaviours. Drawing on interviews held with Croatian, Slovenian and Swedish
judges, our results reveal three shared reasons judges remain passive: referrals are not required
by the formal rules (procedural normative motivation), referrals are not made to protect the par-
ties to the case (substantive normative motivation) and referrals are not made to protect judges’
reputations (instrumental motivation). In addition, we unveil motives that are shared by only
judges from one or two Member States, such as not referring cases to uphold the capacity
of the preliminary ruling procedure (Swedish judges) and not referring cases due to a fear of
sanctions and a lack of knowledge and resources (Croatian and Slovenian judges). We discuss
these similarities and divergences in light of the theoretical discussion on the role of courts as
active or passive actors in EU legal integration.
Keywords
Article 267 TFEU, ECJ, European integration, national courts, national judges, preliminary ruling
procedure, social psychology
*
Department of Government, Uppsala University, Sweden
**
Erasmus School of Law, Erasmus University Rotterdam, The Netherlands
Corresponding author:
Karin Leijon, Department of Government, Uppsala University, Box 514, 751 20 Uppsala, Sweden.
E-mail: karin.leijon@statsvet.uu.se
Article
Maastricht Journal of European and
Comparative Law
2022, Vol. 29(2) 263–285
© The Author(s) 2022
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1023263X221091768
maastrichtjournal.sagepub.com
1. Introduction
National courts are considered the main interlocutors of the European Court of Justice (‘ECJ’or ‘the
Court’).
1
The conventional view holds that national courts and judges have helped the ECJ push the
integration process further than Member State governments would have been willing to do on their
own.
2
The national judges have done so by supplying the Court with cases under Article 267 of the
Treaty on the Functioning of the European Union (‘TFEU’). However, while many national courts
refer cases to the ECJ and thereby become co-producers of EU legal norms,
3
others remain passive
bystanders of the EU integration process.
4
This phenomenon whereby some national courts and
judges refrain from engaging in the preliminary ruling procedure has important implications for
the future direction of EU legal integration. If national judges fail to introduce their Member
States legal traditions before the Court, they leave it for the ECJ to apply EU law as it sees fit.
5
By extension, pluralistic European constitutional dialogue is likely to be weakened.
6
While there is a growing body of literature on the behaviour of individual national judges, for
instance with regard to their knowledge of and attitudes towards EU law,
7
only a handful of
studies have provided in-depth insights into how judges experience the preliminary ruling proced-
ure and what drives their decision to remain passive.
8
This article contributes to the literature on the
role of national judges in the EU legal system and on the debate on passive national judges in two
ways. First, it makes an empirical contribution by investigating how Croatian, Slovenian and
Swedish judges decide not to request preliminary rulings from the ECJ. Apart from a few
1. K.J. Alter, Establishing the Supremacy of European Law: The Making of an International Rule of Law in Europe
(Oxford University Press, 2001); W. Mattli and A.-M. Slaughter, ‘Revisiting the European Court of Justice’,52
International Organization (1998), p. 177; J.H.H. Weiler, ‘A Quiet Revolution: The European Court of Justice and
Its Interlocutors’,26Comparative Political Studies (1994), p. 510.
2. A. Stone Sweet and T.L. Brunell, ‘The European Court and the National Courts: A Statistical Analysis of Preliminary
References, 1961–95’,5Journal of European Public Policy (1998), p. 66; K.J. Alter, ‘Who are the “Masters of the
Treaty”?: European Governments and the European Court of Justice’,52International Organization (1998), p. 121;
L. Conant, ‘Review Article: The Politics of Legal Integration’,45Journal of Common Market Studies (2007), p. 45.
3. J.E. Rytter and M. Wind, ‘In Need of Juristocracy? The Silence of Denmark in the Development of European Legal
Norms’,9International Journal of Constitutional Law (2011), p. 470.
4. J. Golub, ‘The Politics of Judicial Discretion: Rethinking the Interaction between National Courts and the European
Court of Justice’,19West European Politics (1996), p. 360; M. Wind, ‘The Nordics, the EU and the Reluctance
Towards Supranational Judicial Review’,48Journal of Common Market Studies (2010), p. 1039.
5. J.E. Rytter and M. Wind, 9 International Journal of Constitutional Law (2011), p. 500.
6. M. Cartabia, ‘Europe and Rights: Taking Dialogue Seriously’,5European Constitutional Law Review (2009), p. 25.
7. For an overview of different surveys, see M. de Werd, ‘Dynamics at Play in the EU Preliminary Ruling Procedure’,22
Maastricht Journal of European and Comparative Law (2015), p. 149; see also T. Nowak, F. Amtenbrink, M. Hertogh
and M.H. Wissink, National Judges as European Union Judges: Knowledge, Experiences and Attitudes of Lower Court
Judges in Germany and the Netherlands (Eleven International Pub, 2011); J.A. Mayoral, ‘In the ECJ Judges Trust: A
New Approach in the Judicial Construction of Europe’,55Journal of Common Market Studies (2017), p. 551;
U. Jaremba and J.A. Mayoral, ‘The Europeanization of National Judiciaries: Definitions, Indicators and
Mechanisms’,26Journal of European Public Policy (2019), p. 386.
8. M. Glavina, ‘To Refer or Not to Refer, That is the (Preliminary) Question. Exploring Factors which Influence the
Participation of National Judges in the Preliminary Ruling Procedure’,16Croatian Yearbook of European Law and
Policy (2020), p. 25; T. Pavone, ‘Revisiting Judicial Empowerment in the European Union: Limits of Empowerment,
Logics of Resistance’,6Journal of Law and Courts (2018), p. 303; J. Krommendijk, ‘The Highest Dutch Courts and
the Preliminary Ruling Procedure: Critically Obedient Interlocutors of the Court of Justice’,25European Law
Journal (2019), p. 394; U. Jaremba, ‘At the Crossroads of National and European Union Law. Experiences of
National Judges in a Multi-Level Legal Order’,6Erasmus Law Review (2013), p. 191.
264 Maastricht Journal of European and Comparative Law 29(2)
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