National Judges as Gatekeepers in EU Legal Integration: Making Decisions in the Preliminary Ruling Procedure Based on Preferences or Norms?

National courts and judges are the crucial link between the EU legal system and the 28 member states. The CJEU’s dependence on the national courts’ willingness to participate in the preliminary ruling procedure (Article 267 TFEU) makes them important gatekeepers in the process of European integration (Tridimas and Tridimas, 2004). In particular, previous research has framed the theoretical debate about national courts as them being either supporters of further European integration or, defenders of national sovereignty (Pollack, 2013; Conant, 2012). Previous research interested in resolving this debate has mainly focused on the national courts’ aggregated behavioral patterns. However, the theoretical controversy is based on assumptions related to the behavior of individual judges. This paper therefore argues that in order to understand the role of national courts as gatekeepers in EU legal integration we must pay attention to what drives the actions of national judges. Whether or what extent are national judges behaving as rational actors as assumed by most previous research, in particular the US judicial politics literature? Are national judges, for example, trying to influence the course of EU legal integration in order to become judicially empowered? The paper addresses these issues by answering the question: How are national judges reasoning in the preliminary ruling procedure? The empirical material consists of interview answers from 20 Swedish judges about what choices they make in the preliminary ruling procedure and why. The results from the analysis refute the assumption that the dominating mode of reasoning among judges is to maximize their preferences. Instead, the findings show that judges mainly consider how different choices may impact the functioning of the legal system, their reputation as well as what they perceive as being the appropriate course of action given their professional obligations. These findings have important implications for our understanding of the inter-branch relations of national courts.