Active or Passive: The National Judges’ Views on the Preliminary Ruling Procedure

A recurring question in the scholarly literature is whether national courts try to be active co-producers of EU legal norms in the preliminary reference procedure. By being active and referring cases, national courts can take part in constructing the European constitution. In contrast, if national courts do not engage in shaping EU legal development, it means that they leave the Court to apply EU law as it sees fit. Moreover, if courts from only a few member states introduce their constitutional traditions before the Court while other national courts remain silent, the pluralistic European constitutional dialogue is likely to be undermined. Whether national courts decide to be active has important implications for our understanding of the driving forces of European legal integration. If we do not pay attention to how the judges’ themselves experience the preliminary ruling procedure we run the risk of misinterpreting the aggregated behavioral patterns and how the national judges take on their responsibility as gatekeepers in EU legal integration. To shed new light on these questions, this paper examines how Croatian, Slovenian and Swedish judges reason when making decisions in the preliminary ruling procedure and the relevance of preferences, formal rules and informal norms in understanding judicial decision-making. Swedish courts, on one hand, can be characterized as active consumers of the preliminary ruling procedure. However, the same can not be said for their counterparts in Slovenia and Croatia where the numbers of preliminary questions continue to be low years after the accession. Building on the Most Different System Design, we explore whether reasons for referring (or not referring) cases to the CJEU differ between the studied countries.