The Preliminary Reference Process: National Court Implementation, Changing Opportunity Structures and Litigant Desistment

Abstract

Litigant desistment, i.e. voluntary litigant implementation of an ECJ ruling in a preliminary reference case that preempts the necessity for a national court decision, is a common - yet often overlooked - strategic behavior new to the study of the ECJ, national courts and the preliminary reference process. The hypotheses directed at predicting and investigating when such litigant behavior occurs are an outgrowth of the ‘implementation prejudice’ that national courts will overwhelmingly apply ECJ decisions in their rulings, which changes the opportunity structures of litigants. Understanding when litigants desist not only expands general knowledge concerning the underinvestigated implementation stage but also arguably could have important implications for our understanding of the evolution of ‘high’ court legitimacy.