Prescriptive clarity and EU legal integration: National judges’ motivations for (not) engaging in the preliminary ruling procedure

This paper explores the circumstances in which national judges justify their decisions in the preliminary ruling procedure with reference to the compliance pull of EU law. Drawing on the concept of ‘prescriptive clarity’, the paper theorizes that compliance pull motives are more common if the rules regulating a specific decision-making procedure have a high degree of prescriptive clarity, i.e., they provide the judges with clear behavioural guidelines. Conversely, if the formal rules are less precise, judges are unlikely to follow ‘the compliance pull of the law’. Instead, other motives, such as personal or politico-strategic motives, are expected to inform the judges’ decision-making. Empirically, the article investigates the motivations behind national judges’ decisions in the preliminary ruling procedure: 1) whether to refer cases to the CJEU (a high prescriptive clarity of the formal rules) and 2) whether to include opinions in requests for preliminary rulings (a low prescriptive clarity of the formal rules). Based on interviews with Swedish judges, the paper shows that contrary to theoretical expectations, a relatively high prescriptive clarity of the formal EU rules does not make judges draw upon these rules when making decisions. In light of this finding, the paper proposes an alternative theoretical way to understand the judges’ justifications for their actions in the preliminary ruling procedure and describes the circumstances in which the compliance pull motive is expected to guide the behaviour of national judges.