National Courts as Regulatory Agencies and the Application of EU Law

The European legal order gives an important role to national judges. They are expected to apply EU law to the legal disputes before them where appropriate. For a long time, the academic literature on the application of European law in the courts of the member states had a normative and doctrinal focus. It described what European law and the Court of Justice of the EU expects from national judges to do. Data from different studies, however, shows some variation in how judges see this role. Based on the findings of in-depth interviews conducted with Croatian, Dutch, German and Slovenian judges, this paper introduces four types of rule application, which are constructed along the lines of more or less use of EU law: judicial balancing, judicial nationalism, judicial Europeanism and judicial retreatism. These types are meant not only to bring order to the data collected but to inspire further research on the influence of the organization of courts and court systems on decision-making patterns.