To refer or not to refer, that is the (preliminary) question. Why Member States’ judges do not participate in the preliminary ruling procedure

Over the last three decades, the EU preliminary ruling procedure has inspired a colossal amount of research. Despite all the work done on Article 267 TFEU, we still know very little about the motives driving individual judges to submit legal questions to the Court of Justice of the European Union (CJEU). This is mainly because the research on the preliminary ruling procedure has focused too narrowly on country-level data, neglecting the fact that preliminary questions are neither the products of Member States’ governments nor the products of courts, but rather of individual judges.

Furthermore, preliminary references are very rare and the majority of national judges will never turn to the CJEU in their entire judicial career. Based on the interview results conducted with 32 judges from Slovenia and Croatia, I explore the non-referral behaviour of Member States’ judges as well as reasons why national judges do not cooperate with the CJEU by means of the preliminary ruling procedure. Contrary to what has been argued by some scholars, I show that Euroscepticism is not the biggest challenge to the participation of national judges in the preliminary ruling procedure but rather judges’ heavy workload and lack of time and/or resources.

Why should we focus on non-referrals?

Ever since the preliminary ruling procedure was introduced by the Treaty of Rome, national courts have supplied the CJEU with a steady and rising stream of cases, allowing it to become presumably the world’s most powerful international court (Alter, 2009). The procedure that gives national courts the duty and the right to turn to the CJEU in case of interpretative doubts has become ‘an essential guarantee of the coherence of the Community legal order and the uniform application of Community law’ (Report on the Role of the National Judge in the European Judicial System). Article 267 TFEU received an enthusiastic welcome not only from national judges but also from academic scholars , who devoted a great deal of attention to explaining variations in referral rates across Member States (Stone Sweet and Brunell, 1998; Carrubba and Murrah, 2005; Hornuf and Voigt, 2015; Wind et al, 2009), levels of national judicial hierarchy (Weiler, 1994; Alter, 1998, 2003), and legal areas (Cichowski, 2007; Conant 2002).

Given the amount of research written on Article 267 TFEU, one would think that submitting a preliminary question to the CJEU is part of the every-day work of a national judge. Yet, this is not the case. In 2018 the CJEU received 568 preliminary questions. This number, however, needs to be observed in light of the millions of disputes adjudicated across the EU every year. Furthermore, as illustrated in Figure 1, within a Member State references are usually submitted by less than 30 per cent of national courts. This observation holds true for almost all EU Member States with the exception of Luxembourg and the Netherlands. Because the majority of national judges will never submit a preliminary question to Luxembourg in their entire judicial career, the attention should be given to non-referrals and reasons behind national judges’ reluctance to turn to the CJEU with a preliminary question.

Figure 1. The proportion of referring courts within a Member State across the EU, 2004-2014

What hinders national judges’ participation in the preliminary ruling procedure?

Based on the results of 32 in-depth interviews conducted with first and second instance judges from Slovenia and Croatia, my research shows that there is not one single explanation of the referral behaviour of national judges. Instead, when deciding whether or not to turn to the CJEU with a preliminary question, national judges are influenced by their individual profiles (knowledge of the procedure, previous experiences with it, knowledge of foreign languages, and reputational considerations), as well as by factors deriving from the institutional setting of a court at which they sit (workload, quotas, time constraints and court resources).

Factors deriving from the institutional configuration of a particular court, however, dominate interview results. Workload has been found as the most cited constraint, which hinders judicial participation in the preliminary ruling procedure. A Slovenian judge, for example, argues that “the judge in first instance is so burdened that simply […] it is hard to imagine that he would take one month’s time to work only on [the preliminary question].” Judges are also constrained by court standards, that is quotas they need to fulfill. While Croatian judges have ‘numerical standards’, which prescribe the number of cases a judge should solve in a year, Slovenian judges have ‘time standards’, that is—“ a deadline which prescribes a certain amount of time in which a case must be resolved”. The existence of such quotas has a direct bearing on the decision to ask a preliminary question as not fulfilling them can result in a lower judicial grade at the end of a year (in Croatian), but also in sanctions such as lower salary or even a dismissal (both in Slovenia and Croatia). A Slovenian judge, for example, says that “In the past, some people were dismissed because they deviated from the number of cases which needed to be solved […]. Or you get 1/3 of the salary you should normally get.”

Judges further emphasise poor court resources as a reason for not turning to the CJEU. These include the non-existence of continuous training on EU law, the insufficient number of law clerks, the non-existence of a special department on EU law, and the non-existence of other external help from experts and law faculties. For example, trying to explain a high number of references coming from the Slovenian Supreme Court, one judge admits that “not only they have more time, but they also have something else and these are law clerks […]. These are people who can be sent to investigate the legal situation, how to ask the preliminary questions, [who] help and unburden a judge. […] The Supreme Court has the best opportunity to ask a preliminary question. It is the least burdened and it receives the most help”.

No Euroscepticism, but lack of time…

Although interview results pointed to the existence of a variety of factors which influence the (non-)referral behaviour of national judges, factors pertaining to the institutional setting of a specific court were found to be one of the biggest constraints of the interviewed judges. Thus, this research demonstrates that — contrary to what has been argued across the legal and political science scholarship — Euroscepticism is not the biggest challenge to the participation of national judges in the preliminary ruling procedure. Instead, the biggest concerns derive from the institutional structure of the national court itself. Faced with heavy workload, time constraints, court quotas and sanctions, judges often have to trade making a referral for the fast closure of the cases before them. The obligation of national judges to refer cases to Luxembourg should thus be seen in the light of personal and institutional constraints, which shape how individual judges behave. 

Monika Glavina is a PhD candidate at the Centre for Legal Theory and Empirical Jurisprudence (part of the Leuven Centre for Public Law) where she also works as a researcher under the EUTHORITY Project (ERC Starting Grant 638154). The full results of this research are forthcoming in the book “The Eurosceptic Challenge. National Implementation and Interpretation of EU Law” (Hart Publishing).

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