Referral Behaviour and Institutional Setup in the European Union Legal Order

By enabling the Court of Justice to engage and enlist the support of domestic judges, the preliminary ruling mechanism is widely recognized to have played a major role in securing the effectiveness of EU law and in furthering the legal and political integration of the continent. Somewhat less appreciated, though, is the fact that national courts differ significantly in terms of institutional configuration, formal powers and resources and that these disparities can influence the rate at which judges submit references. Some scholars have contended that courts lower down the judicial hierarchy (Weiler 1991, 1994) and courts facing heightened competition from other judicial bodies (Alter 1998) are more willing to embrace this form of legal integration. But these claims are not undisputed (Stone Sweet 1998). Constitutional tribunals, meanwhile, have been noted for their reluctance to refer questions to the Luxembourg Court. In this paper, we explore how domestic courts differ in their referral behaviour depending on the position they occupy in the juridical hierarchy (first instance, appellate, supreme) and their subject matter jurisdiction (civil, criminal, administrative, specialised) on the basis of a new dataset complementing and correcting data initially collected by Stone Sweet and Brunell (1998). We discuss how the judges’ motives along with the varying resources and constraints attending the court on which they sit may affect their propensity to submit references. We also consider the logic of spill-over and neo-functionalist arguments regarding the expansion of EU law litigation to new areas of law. Our analysis covers all EU-28 Member States from 1961 to 2015. Based mainly on descriptive statistics, our preliminary results show that first instance courts pioneered use of the preliminary ruling procedure, but that appellate and peak courts soon caught up. Following the 2004 enlargement, peak courts have even overtaken lower and intermediate level courts. With respect to subject matter jurisdiction, we find that civil and criminal courts, followed by administrative and tax courts, display the highest referral rates. We interpret these findings as evidence that institutional design and resource allocation influence use of the preliminary ruling system.