The role of lawyers: the crucial but overlooked actor in triggering Article 267 TFEU

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Preliminary references are an important feature of EU law. While scholarly literature has focused on the role of judges in the process of judicial dialogue in the EU (more specifically, with regard to triggering Article 267 TFEU), that of lawyers and other non-state actors in the process has been overlooked. To date, little has been said about the motivations of these different actors who have triggered Article 267 TFEU. In this post, Angelina Atanasova draws attention to the context and the role of lawyers with regard to the preliminary reference procedure, based on a case study of Denmark.

Article 267 TFEU sets up a procedure allowing domestic courts to ask the Court of Justice of the European Union (CJEU) questions on the interpretation and validity of EU law where necessary in a case pending before them. The initial objectives of the preliminary reference procedure were twofold: to ensure the uniform application of EU law across the Member States and to provide domestic courts with an avenue for communication with the CJEU. However, the intentions for its application have largely expanded beyond this initial concept. It evolved from a procedure for enhancing judicial dialogue to a mechanism of Europeanization and legal integration, and even into a mobilization tool for testing existing domestic legal boundaries. Nowadays, in times of democratic backsliding in several EU Member States, it has been considered in political and scholarly discussions as a potential tool that could fight back against undemocratic state actions (Blauberger and Kelemen 2016; Pech and Platon 2018; Pech and Wachowiec 2019) . In Poland, for example, determined judges submitted references to the CJEU in their pursuit to protect the independence of their domestic judiciary (see: Joined Cases C-585/18, C-624/18 and C-625/18 – Polish Supreme Court).

Attention needed for context and actors

Undoubtedly, the angle from which one explores the application of the preliminary ruling procedure, cannot be isolated from its temporal and contextual aspects – when it is used, why and by whom (Cohen and Vauchez 2011). However, the importance of these  factors has often been overlooked in scholarly research exploring the mechanisms for triggering the procedure and its patterns of application by domestic courts. The focus of quantitative scholarly research has been put on transnational and economic factors (e.g. Sweet and Brunell 1998; Tridimas and Tridimas 2004; Lampach and Dyevre 2017), while another strand of literature has mainly focused on the structure of judiciaries and judicial attitudes towards the CJEU (e.g. Wind, Martinsen, and Rotger 2009). As a result, correlations between the output of preliminary references (in numbers) and various factors have been identified, while causation mechanisms remain largely unexplained.

In Weiler’s seminal work on legal integration, Transformation of Europe, he pictures a role for “individuals (and their lawyers)” in the process. He describes them as actors with the potential to serve as “’guardians’ of the legal integrity of Community law within Europe”. The institutional setting in place – the preliminary reference procedure and the doctrines of direct effect and supremacy, adopted by the CJEU in its early existence – have made such legal actions at EU level possible. However, to date, little has been said about the actors (lawyers, NGOs, activist groups among others) involved in these cases  and the role they have played. The internal dynamics of the litigation process have also remained unaddressed.

A case study of Denmark: lawyers and trade unions as key players

After two, even three decades of scholarly exploration of the preliminary ruling procedure, only a few studies have provided more contextual knowledge, explaining the motivations of actors driving the procedure’s application across specific cases (Nicola and Davies 2017; Kelemen and Pavone 2018; Mayoral and Pérez 2018Hoevenaars 2018; Pavone 2019). They not only reconstruct the ‘stories’ of the references but also look more deeply into the incentives that drove the central actors of these cases to seek the involvement of the CJEU. Submitting a reference is not an occasional event and thus, it requires extraordinary circumstances to take place.

As part of research conducted in Denmark focusing on the actors triggering the preliminary ruling procedure in gender equality and disability related matters, empirical evidence was found that lawyers and their specialized legal knowledge constitute the first step towards triggering Article 267 TFEU (Atanasova and Miller in Muir et al. 2017). The research points to the role of trade unions and their in-house and contracted lawyers who have played a crucial role.

In nearly all cases originating from Danish courts before the CJEU in gender equality (Article 119 of the EC Treaty, Directive 75/117/EEC, Directive 76/207/EEC, Directive 92/85/EEC, Directive 86/613/EEC) and disability discrimination (Directive 2000/78/EC) as well as in other discrimination cases under the same Equality Framework Directive, Danish trade unions were the ones requesting the referrals. From 1973 to 2017 ten references related to gender equality and disability. Nine of them were supported by a trade union with one trade union presenting seven of these. More broadly, there have been in total nine references in relation to Directive 2000/78/EC (three on the ground of disability and six on the ground of age discrimination), with eight of them supported by a trade union. Thus, out of the overall number of references submitted by Danish courts (87) in the period since the very first reference in relation to Directive 2000/78/EC in 2004 (Mangold v Helm), until 2017, 10.3% are references addressing discrimination matters (Atanasova and Miller in Muir et al. 2017).

The Danish system provides an example of a flexicurity model where citizens overall enjoy a great level of social security protection but employees have limited protection against dismissal. In this system, with the status quo set by collective agreements and parties’ negotiations, some unions enhanced the  array of rights for their members through involvement of the judiciary. EU legislation, with its clearly set minimum standards on employees’ rights and expanding regulative acts concerning ever more aspects of employment (e.g. the Equality Framework Directive 2000/78/EC, the Working Time Directive 2003/88/EC, Parental Leave Directive 2010/18/EU), often exceeding the array of minimum rights set in the Danish collective agreements, has brought new implied rights and incentives to activate these in the Danish domestic context. In most of the discussed cases, however, this was not merely a political decision of the trade unions. Contracted or in-house lawyers were the ones who have played the crucial role in pointing out the advantages of EU law, in triggering Article 267 TFEU and even in formulating the preliminary questions.

Danish context and actors motivations

Based on 25 interviews conducted with lawyers, trade unions representatives, judges and equality bodies members in Denmark, I aimed to identify the motivations and the related context that prompted the questions to the CJEU. The findings are in line with Galanter’s hypothesis about the resourceful ‘haves’ and ‘repeat players‘ (i.e. persons and organisations that anticipate repeat litigation and have resources to pursue long-term interests). They revealed that not only are the same organisations taking up litigation at supranational level, but often the same lawyers were supporting cases repeatedly brought before the CJEU. The lawyers’ stories about how they embarked on requesting referrals revealed patterns of transfer of EU legal knowledge – not only between lawyers but also from one legal domain to another. Some lawyers shared that they have been inspired by the success of a colleague’s impact on the status quo in relation with different aspects of employees’ rights, triggering change that otherwise would not have been possible. When one of the interviewed lawyers was asked whether a political channel would not have served better their goal, the response was: ‘I would say [litigation before the CJEU] was the only way…’ to bring change in the system.

This case study offers an excellent example of a country context where EU law provides comparatively better protection of rights in the labour market, turning the domain into a fruitful platform for triggering Article 267 TFEU in the pursuit of more rights. Over time, legal expertise, personal motivation of political and legal actors and the right cases have made the preliminary references in Denmark successful in amending domestic legislation and prompting clarification of legal concepts. An excellent example of the latter can be seen in the CJEU ruling in Ring and Skouboe Werge, defining when a person is disabled, also demonstrating the potential scale of the impact of such cases. The Ring and Skouboe Werge cases are now considered key to providing guidance on the concept of disability in employment discrimination for domestic courts across the EU. All that was achieved in the pursuit of individual claims, which also stood for stronger employees’ rights, sometimes even in a context of judicial tension between domestic courts and the CJEU (see Ajos A/S case).

Conclusion

Finally, this does not dismiss the crucial role played by domestic judges. Indeed, they remain a central actor to the procedure that can choose to support non-state legal actors rightfully aiming to use Article 267 TFEU, to ‘block’ their actions or sometimes even to act on their own motion as judicial activists. Nevertheless, while judges have remained the central actors in the scholarly research, the overlooked lawyers have been and continue to be crucial players in the context of triggering Article 267 TFEU. In conclusion, the Danish case constitutes an excellent example how EU law can serve as a ‘game changer’ when activated by lawyers with the right cases that ‘click’ the system.

Angelina Atanasova is a PhD candidate at the Leuven Centre for Public Law at KU Leuven. Previously, Angelina was a Research Manager at Ecorys Europe and a Researcher at the EUTHORITY project, as well as Consultant for the Open Society European Policy Institute.


A. ATANASOVA, "The role of lawyers: the crucial but overlooked actor in triggering Article 267 TFEU", Leuven Blog for Public Law, 20 July 2020, https://www.leuvenpubliclaw.com/the-role-of-lawyers-the-crucial-but-overlooked-actor-in-triggering-article-267-tfeu (geraadpleegd op 2 December 2020)

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