“To Submit or Not to Submit – That is the (Preliminary) Question”: Exploring National Judges’ Reluctance to Participate in the Preliminary Ruling procedure

The absence of any external incentives from the CJEU to submit preliminary questions makes the participation of national judges in the preliminary ruling procedure completely voluntary. The CJEU cannot offer monetary or other rewards nor can it punish national judges for their (non)cooperation. While research on judicial politics has emphasised the cooperative aspects of the European integration process − focusing on the willingness of national judges to participate in the mechanism – the fact that the majority of national judges will never in their entire judicial career submit a reference to Luxembourg is less appreciated. This paper deals with the non-cooperative side of European integration and explores justifications judges put forth for not engaging with the CJEU. It discusses judicial incentives and disincentives to submit a preliminary question and how personal motives of individual judges along with various constraints deriving from the setting in which judges operate affect their willingness to engage with the CJEU. The paper is based on representative data obtained by surveying 450 and interviewing 30 first and second instance judges in two new EU Member States: Slovenia and Croatia. In line with theoretical predictions, the results show that workload plays a major role in discouraging national judges to engage with the CJEU by means of the preliminary rulings procedure. Judges find it more important to manage their caseload than to lose their valuable time on preparing and drafting a reference and on waiting for the answer from Luxembourg. The research emphasises the role of quotas − benchmark criteria in Croatia and time standards in Slovenia − as two main constraints hindering national judges’ participation in the preliminary ruling mechanism. The implications of the findings for theories of judicial behaviour and for legal practice are also discussed. The importance of the paper lies in identifying institutional setting and its constraints as a challenge to the effective enforcement of EU law at the national level. The paper demonstrates that even pro-European judges may be reluctant to enter into dialogue with the CJEU if this adds to their already substantial workload, a focus which would fit well the panel on ‘Compliance and Effectiveness of Courts’. Furthermore, by focusing on Slovenia and Croatia – two new EU Member States which have not yet been studied empirically nor theoretically – this paper complements research on Central and Easter Member States, contributing to the panel on ‘Politics and Courts in Central Europe’.