Sticks, Carrots and the “Jewel in the Crown”: The participation of the Belgian last instance courts in the preliminary ruling procedure

The participation of national courts and judges in the preliminary ruling procedure (art. 267 TFEU) has been in the centre of academic attention for decades now. In particular, various scholars have investigated the legal and extra-legal motives behind the (non) participation of national judges in the procedure. So far, the empirical research has covered the Polish, Spanish, Italian, Croatian, Slovenian, Swedish, British, Irish and Dutch legal systems. Importantly, the vast majority of those studies concerned the functioning of national lower instance courts and judges in the framework of the preliminary ruling procedure. In this paper we offer a new account of the participation in the preliminary ruling procedure by the Belgian highest courts judges. In that sense, the paper aims to contribute to filling an empirical gap regarding the Belgian judiciary system as so far there have been no studies in this field. The focus on the Belgian highest courts is moreover interesting as it allows for an examination of what motivates the Belgian Constitutional Court to be among the most active users of the preliminary reference mechanism. The ultimate objective of the paper is to contribute to the theoretical discussion in the field. The paper is based on mixed approach and combines doctrinal and empirical insights. The original, qualitative data which the proposed paper is predominantly based upon was gained in the course of ten semi-structured interviews with Belgian judges and court clerks that took place in 2022. The final aim of the paper is to contribute to the theoretical discussion regarding the (non) participation of national courts in the preliminary ruling procedure and the possible motives behind it.