Preliminary Ruling Procedure Research Articles

The Dutch Preliminary Ruling Procedure in the Light of the European Directive on Representative Actions

Abstract Dutch civil law allows courts of first and second instance to refer preliminary questions to the Supreme Court. In mass claim disputes there may be a concurrence between the safeguards of the preliminary ruling procedure and the protection provided by Directive 2020/1828 on representative actions for the protection of the collective interests of consumers. This working paper addresses several issues regarding this concurrence. These include legal certainty, the influence of non-parties, the costs and the duration. The authors come to the conclusion that the preliminary ruling procedure can be very useful in mass claim disputes, albeit that both the lower courts and the Supreme Court need to align their practice more closely with the safeguards of the Directive on a number of points. These findings may be relevant for other European jurisdictions that recently introduced a preliminary ruling procedure, or that are about to insert a preliminary ruling procedure in their civil procedural law system.

The Unfolding Story of Judicial Dialogue in the EU: The Coercive and Persuasive Motives Behind the Participation of Belgian Highest Courts in the Preliminary Ruling Procedure

Abstract The story of national judges’ participation in the process of dialogue with the Court of Justice of the European Union (ECJ) pursuant to Article 267 TFEU is a well-known one. There have been many scholarly efforts to explain and theorize the—lack of—participation of national courts in the mechanism. Indeed, various constitutional, institutional, procedural, cultural, political, and individual factors are pointed out to explain this engagement. Yet, it may come as a surprise that still much remains unknown. The available empirical data concerning the potential causes of the national judges’—non—participation is limited to a number of EU member states and is mostly confined to lower courts judges. It is the aim of this Article to partly fill the void in the literature and to provide novel empirical data gained in the course of semi-structured interviews among judges and court référendaires of three Belgian highest courts. The interviews provide insight into the possible factors driving concerned national judges when deciding (not) to refer preliminary questions, including the role and significance of the obligation to refer which is to be found in Article 267 TFEU and the Cilfit-criteria.

A Matter of Prescriptive Clarity? Analysing How Swedish Judges' Motives for Action Vary in the Preliminary Ruling Procedure

AbstractThis article explores how national judges' reasoning in the preliminary ruling procedure varies depending on the prescriptive clarity of European Union (EU) legal frameworks. Drawing on the logic of appropriateness and the logic of expected consequences, this article formulates hypotheses regarding judges' motivational patterns. Interviews with Swedish judges generate findings that partly corroborate these hypotheses. The findings show that when EU legal frameworks are clear, judges express a mix of considerations, including references to EU rules, expected politico‐strategic outcomes and professional norms. When the clarity of the frameworks is low, judges mainly motivate their decisions by invoking professional norms. In light of these findings, the article proposes a revision of the compliance pull explanation that takes into account how not only formal EU rules but also informal norms of appropriate professional conduct may influence the actions of national judges.

Primena prava Evropske unije pred letonskim sudovima

This article outlines the main changes that the system of Latvian courts faced after Latvia's accession to the EU. In the legislative field Latvia has added in its procedural laws general provisions that incorporate EU law into Latvia's legal system, as well as the possibility of national courts to apply preliminary rulings procedure. During Latvia's EU membership, Latvian courts have adapted to their role in the application of the EU law, especially in the area of administrative law. Latvian courts have referred to the Court of Justice of the EU for preliminary rulings in over 100 cases, mostly from administrative courts. This corresponds with general tendencies in other new EU Member States. However, the fact that there are very few requests for preliminary rulings from courts that are not the courts of the last instance in Latvia, suggests that Latvian courts of first instances are somewhat unwilling to make use of the preliminary rulings procedure and do not see the benefits in its use.

To Refer or Not to Refer, That Is the (Preliminary) Question: Exploring Factors Which Influence the Participation of National Judges in the Preliminary Ruling Procedure

This paper explores factors that either motivate or constrain national judges’ participation in the preliminary ruling procedure. By incorporating insights and evidence from American judicial politics literature and drawing from three models of judicial decision making: the attitudinal model, the team model, and the resource management model, it places the study of judicial behaviour with respect to the preliminary ruling procedure on more rigorous theoretical grounds. The paper is based on survey results conducted among 415 national judges from two new EU Member States: Slovenia and Croatia. In line with the theoretical predictions, the results show that the decision to make a referral to the CJEU is determined by several individual- and court-level factors. These are the position that a court occupies in a national judicial hierarchy, the judicial workload and availability of resources, and judges’ knowledge and experiences with respect to EU law and Article 267 TFEU proceedings. Keywords: CJEU, preliminary ruling procedure, judicial behaviour, team model. This work is licensed under the Creative Commons Attribution − Non-Commercial − No Derivatives 4.0 International License. Suggested citation: M Glavina, ‘To Refer or Not to Refer, That Is the (Preliminary) Question: Exploring Factors which Influence the Participation of National Judges in the Preliminary Ruling Procedure’ (2020) 16 CYELP 25.

Judicial Hierarchy in the Preliminary Ruling Procedure: Exploring the Relationship Between the First and Second Instance Courts

The paper contributes to the scholarly debate on cross-court variations in referral rates by exploring the role of the judicial hierarchy on the propensity of national judges to refer legal questions to the CJEU. The novelty of the paper lies in placing a particular emphasis on the cooperation between the first instance and appellate national courts. The questions that this paper deals with are: How do first and second instance judges perceive their role in the preliminary ruling procedure? Are there any differences between the first and second instance judges? If yes, what could explain these differences? These questions are explored from a judge-level based on the data obtained by surveying and interviewing national judges from two new EU Member States: Slovenia and Croatia.

Case Selection in the Preliminary Ruling Procedure

We examine the emergence and evolution of docket control mechanisms in the preliminary ruling procedure. As documented by our quantitative analysis, reasoned orders have increased dramatically since the mid-1990s, with courts in Italy and Central and Eastern member states being the most frequent targets. We argue that the trajectory of the ECJ’s docket policy is an indirect manifestation of its ascendant position as Europe’s judicial powerhouse. Facing a rising caseload, the Court has sought to optimise the allocation of its resources by applying stricter admissibility criteria and by prioritising references raising novel legal issues. For domestic courts, this evolution means that references must satisfy higher standards of quality and originality, although the application of these standards is itself influenced by the size of the Court’s backlog at the time of submission.

European “Judicial Monologue” of the Czech Constitutional Court – a Critical Review of its approach to the Preliminary Ruling Procedure

Summary The paper analyses the use of the preliminary ruling procedure by the Czech Constitutional Court and the attitude of this court towards the EU law. The approach of the Constitutional Court to the judicial dialog is also compared with some other European constitutional courts mainly with those who have a similar role in national judiciary or with those who were able to effectively take an advantage of the preliminary ruling procedure. The paper demonstrates that the Czech Constitutional Court took the position that seems to be unsustainable from a long time perspective as the reality of the current development favours the spirit of cooperation among European highest courts.

Subject Matter Specialization of European Union Jurisdiction in the Preliminary Rulings Procedure

AbstractOver the years, judgments by the European Court of Justice (“ECJ”) have been—sometimes heavily—criticized. While the recent reforms to the EU’s judicial system have addressed the high caseload of the General Court of the European Union (“GC”), the perceived lack of quality of the ECJ’s judgments in preliminary rulings procedures remains an issue. This Article will outline in what way these judgments are criticized and try to examine the root causes of the criticism. It goes on to argue that subject matter specialization is an adequate answer to this criticism and examines how subject matter specialization can be introduced into the European Union (“EU”) judicial system.

The Use of the Preliminary Ruling Procedure by Czech Courts: Historical Retrospective and Beyond

AbstractThe article analyses the use of the preliminary ruling procedure by the Czech courts in the 15 years of the Czech membership in the European Union. It presents statistics of cases lodged to the EU Court of Justice and refers to the most important decisions. The article compares the practise of both lower courts as well as courts of last instance, namely the Supreme Court and the Supreme Administrative Court. It also outlines the attitude of the Czech Constitutional Court towards this procedure.

Preliminary Ruling Procedure as a Tool of Cooperation between the Court of Justice of the EU and National Constitutional Courts

Preliminary Ruling Procedure as a Tool of Cooperation between the Court of Justice of the EU and National Constitutional Courts

Reluctance to Participate in the Preliminary Ruling Procedure as a Challenge to EU Law: A Case Study on Slovenia and Croatia

This paper aims to understand the non-referral behaviour of national judges and judicial motives behind the decision to submit or not to submit a preliminary question to Court of Justice of the European Union. The chapter builds on the labour market and resource management argument and posits that there is no one single explanation of the referral behaviour of national judges. The use of the preliminary ruling procedure by national judges is, instead, motivated and constrained by a broader set of factors. In line with the theoretical predictions, the results show that the decision to submit a preliminary question to Luxembourg is determined by the individual profiles of judges, litigants’ input, as well as by the factors deriving from the wider institutional setting in which judges operate.

The Preliminary Ruling Procedure in a Nearly Six Decades Perspective

The Preliminary Ruling Procedure in a Nearly Six Decades Perspective

‘To Submit or Not to Submit – That Is the (Preliminary) Question’: Explaining National Judges’ Reluctance to Participate in the Preliminary Ruling Procedure

This paper explores factors that either motivate or constrain national judges’ participation in the preliminary ruling procedure. By incorporating insights and evidence from American judicial politics literature and drawing from three models of judicial decision making: the attitudinal model, the team model, and the resource management model, it places the study of judicial behaviour with respect to the preliminary ruling procedure on more rigorous theoretical grounds. The paper is based on survey results conducted among 415 national judges. In line with the theoretical predictions, the results show that the decision to make a referral is determined by several individual- and court-level factors. I find empirical evidence that the referral behaviour of national judges is influenced by the court level, judicial workload and resources availability, and judges’ knowledge and experiences with EU law and Article 267 TFEU.

The Preliminary Ruling Procedure: Old Problems or New Challenges?

This paper is a revised and updated (till 1 December 2016) version of Professor Jurian Langer's inaugural lecture held on 31 March 2015. The paper focuses on the preliminary ruling procedure of Article 267 of the Treaty on the Functioning of the European Union. This procedure gives every national court the power – and even imposes an obligation on some courts – to refer preliminary questions concerning the interpretation of European law and the validity of the acts of EU institutions to the Court of Justice of the European Union. This procedure is a vital and successful dialogue between national courts and the Court of Justice – one beset by old problems and facing new challenges. The author looks in this paper more closely at the preliminary ruling procedure and its functioning. What factors affect the success of this dialogue? And how can we ensure that it continues to be successful? More specifically, Professor Jurian Langer examines the opportunities for national courts and the Court of Justice – within the current parameters of the European treaties – to influence the dialogue and to continue successful cooperation. The author argues that if the main actors involved continue to shoulder their shared responsibility underlying the procedure, it will continue to be a success. In this context, the paper suggests, among other things, an increased 'European' role for the highest national courts by relaxing the CILFIT-criteria, an increased use of Article 101 of the Rules of Procedure as well as a stricter admissibility rule regarding references in relation to internal situations.

Eppur Si Muove! The Past, Present, and (possible) Future of Temporal Limitations in the Preliminary Ruling Procedure

<i>Eppur Si Muove!</i> The Past, Present, and (possible) Future of Temporal Limitations in the Preliminary Ruling Procedure

Opinion 2/13 of the Court of Justice of the European Union: Analysis and Further Perspectives of European Union Accession to the European Convention on Human Rights (Мнение 2/13 Суда Европейского Союза: анализ и дальнейшие перспективы присоединения Европейского Союза к Европейской конвенции по правам человека)

This paper is devoted to the legal analysis of CJEU Opinion 2/13 on European Union accession to the European Convention on Human Rights. The article examines the CJEU’s approach to the interpretation of Art. 267 and 344 of the Treaty on the Functioning of the European Union — in the light of Protocol No. 16 to the European Convention on Human Rights, as well as the previous case law of the Court of Justice (Mox Plant and Melki and Abdeli). The conclusions are drawn as to the manner in which Opinion 2/13 develops EU legal order autonomy doctrine and how it affects the future perspectives of EU accession to the European Convention on Human Rights. Firstly, while interpreting the content and purpose of Art. 344 TFEU, the CJEU gives a positive answer to the question as to whether the ECHR compliance system falls within the ambit of this Treaty provision. Secondly, the Court of Justice takes an extremely protective approach in giving its interpretation to the role of preliminary rulings procedure guaranteed by Art. 267 TFEU for the unity and efficiency of European law, making even the legal protection of individuals secondary to these purposes. It is quite probable that the accession will be delayed for an indefinite period of time — due to the likely impossibility of reaching a consensus on a new version of the Draft accession agreement with all members of the Council of Europe (such as Russia, Ukraine and Turkey) in the very near future. At the same time, European Union accession to the European Convention on Human Rights remains a legal duty in accordance with Art. 6 Treaty on the European Union (TEU), Declaration No. 2 on Article 6 (2) TEU and Protocol No. 8 to the Lisbon Treaty.

Reading the Tea Leaves: The Polish Constitutional Tribunal and the Preliminary Ruling Procedure

The main purpose of the preliminary ruling procedure is to prevent divergences in judicial decisions applying European Union (EU) law and to ensure the uniform interpretation of EU legal provisions across Member States. The procedure, introduced in the Founding Treaties, has provided a platform for the Court of Justice of the European Union (hereafter, the ECJ or the CJEU) to deliver seminal judgments that have progressively defined the relationship between national and EU legal systems, among others. The procedure has also helped the ECJ to develop fundamental principles of EU law, including direct effect, indirect effect (i.e., the interpretation of national law in line with directives) and primacy. Being one of the most important aspects of the EU judicial system, the procedure provided by Article 267 of the Treaty on the Functioning of the European Union (hereafter, TFEU) has had an immense impact on the harmonious development of EU law and the way in which national courts and EU courts interact and communicate.

Dynamics at Play in the EU Preliminary Ruling Procedure

Dynamics at Play in the EU Preliminary Ruling Procedure

Communication within the Preliminary Rulings Procedure

Communication within the Preliminary Rulings Procedure