Constitutional Referrals to National Constitutional Courts: Examining the Reasons why Ordinary Court Judges Refer.

Many judicial systems utilize a process, often known as a ‘referral’ process, in which one court has the ability to call upon another court, particularly a superior court, for definitive interpretations of law. This referral process is perhaps most widely known from its use in the European Court of Justice, which has long thrived on receiving referrals (known as preliminary references) from national courts within the European Union. Yet, the ECJ’s preliminary reference process is itself derived from the constitutional referral processes previously adopted in several national judiciaries of the EU member states, notably Germany and Italy. In this paper we examine the constitutional referral process at the national level, using data from the German Constitutional Court and interviews with court officials to test different theories of why lower ordinary courts refer cases to their national constitutional courts. There currently is a lack of theory and empirical data examining why lower ordinary courts choose to refer certain cases to the national or federal constitutional court. Our study, then, is exploratory in nature, focusing on a variety of factors – including policy issues, legal doctrine, and regional court characteristics – that might influence ordinary court references.