The Referring Court’s Influence on the EU Court of Justice Judgment

Can national courts influence EU Court of Justice? The Court of Justice’s importance for the EU’s legal trajectory can hardly be overstated. However, the Court does not work in isolation. In particular, it is dependent upon the cooperation of national courts both for exercising its jurisdiction, through the preliminary reference procedure laid down in Article 267 of the Treaty on the Functioning of the EU, and for the subsequent enforcement of its judgments. Having paved the way for seminal judgments developing inter alia the doctrines of supremacy and direct effect, the preliminary reference procedure is often considered the crown jewel of the Union judiciary. This procedure is not only a means of obtaining legal guidance on the application of EU law, but also offers national courts an opportunity to weigh in on how EU law should be understood and developed. Under the rules governing preliminary references, national courts decide if and when to request a ruling. Moreover, national courts formulate the questions, set out the factual and legal context of the issue at stake, and may even take the opportunity to defend points of national law and identity or invite the Court to strike a new balance in its jurisprudence. For these reasons, it has been assumed in legal scholarship that the referring national courts are influential actors and collaborators in the judicial development of Union law. This paper aims to systematically examine the merits of this assumption. Relying on a unique dataset of 193 orders for references from national courts throughout the Union and the 160 judgments they gave rise to, it uses legal empirical method to examine the extent to which arguments, observations, and perspectives brought up by the referring court reappear in the reasoning of the Court of Justice. On this basis, the paper offers empirically grounded insight into the national courts’ role and opportunity to shape EU integration through requests for preliminary references.