No Preliminary References from Dutch Overseas Judges: Is It Tambu or Tumba Dancing with the Court of Justice?

Abstract

Under EU law, parts of several Member States are characterised as Overseas Countries & Territories (OCT); the metropolitan parts of those Member States are situated in Europe. Courts established in OCT areas are considered Member State courts as described in Art. 267 TFEU. Because of this status, they may ask preliminary questions to the Court of Justice. Only two French OCT courts have ever made a preliminary reference to the Court of Justice, while Danish and Dutch OCT judges have never referred their cases to the Court; nor did judges from the British OCT before Brexit. The question I seek to answer in this Article is whether judges of the OCT courts are unaware or unwilling to refer “their” cases to the Court. To arrive at an answer, the opinions from judges – retired and currently on the bench alike – from the Dutch OCT on both EU law and the EU preliminary references procedure were collected through an online questionnaire and interviews. The results demonstrate that judges are mainly unaware, but – once well informed – willing to refer to the Court. This conclusion fits within researches regarding other national judges. It also indicates that there are several ways to improve the awareness of the Dutch OCT judiciary from when i) EU law applies, and ii) the preliminary reference can be used; both in theory and also in practice.