The Diverging Motives for National Courts (not) to Refer Preliminary Questions

The judicial dialogue between the CJEU and the national courts via the preliminary ruling procedure ultimately depends on the willingness of national courts to refer preliminary questions. In the light of several recent high-profile cases, this willingness can, however, not be taken for granted. This paper summarises the findings of a PhD project on the motives of national courts when deciding whether to refer preliminary questions to the CJEU, with a particular focus on the variation in motives between different subgroups of courts. Through a combination of case law analysis over the period 2013-2017, and 85 qualitative interviews with primarilly domestic judges, case studies are conducted on the referral practice in four very different areas of law – asylum, consumer, competition, and criminal procedural law – in the Netherlands, Germany and Austria. The results show a strong divergence in the motives behind numbers of references, both between Member States, but especially between fields of law. Against this background, the paper aims to explain how the interaction between different motives affects the referral practice in these subgroups of national courts.