Lawyering Eurolaw: An Empirical Exploration into the Practice of Preliminary References

Abstract

The preliminary reference procedure is often credited as the engine behind European integration. Until very recently however, the role of lawyers in this parable of law-led political unification has remained relatively unexplored. As a result, we still lack empirical insight into the day-to-day on-the-ground practice of “doing EU law” by legal professionals that represent parties before the European Court of Justice. Without an exclusive focus on highly transformative, salient, or “landmark” cases, and opting instead for a bottom-up approach, this Article looks at the everyday practice of references to the European Court of Justice from the perspective of the legal practitioners that litigate these cases. This Article draws on interviews with lawyers that have assisted individual litigants in preliminary reference procedures and presents an empirical exploration into the everyday context in which legal practitioners work on preliminary references cases. The central question this Article aims to answer is: How do lawyers deal with the challenges of representing individual parties in preliminary references cases? The findings underscore how the effective use of the preliminary reference procedure is reserved largely for organisations and “strategy entrepreneurs” with the necessary credentials, means, and expertise. On the one hand, it provides possibilities for “trumping” the domestic legal system whenever supranational legislation provides opportunities against national policy or legislation; on the other hand, in terms of access to justice and as a form of remedy, the preliminary reference procedure remains a difficult “sword” to yield.