You are looking at 1 - 10 of 38 items

  • Series: Elgar Studies in European Law and Policy x
Clear All Modify Search
Open access

Jasper Krommendijk

The preliminary ruling procedure is the keystone of the judicial system in the EU. Yet little is known about its actual functioning. This introduction shows that there are four empirical gaps and highlights the need to offer a new interdisciplinary perspective. It sketches the legal framework with respect to the procedure, namely Article 267 TFEU, the Cilfit exceptions and enforcement possibilities for the European Commission and CJEU in case of non-referral. It provides a literature overview and carefully categorizes existing theoretical accounts about the motives and considerations of national judges to refer. It justifies the selection of three countries: the Netherlands, Ireland and the United Kingdom on the basis of a different culture with respect to referring.

Open access

Jasper Krommendijk

This chapter argues that the great majority of references can be attributed to legalist considerations and pragmatism. It shows that judges in all three jurisdictions mainly operate in a pragmatic way and predominantly include pragmatic and practical considerations in their decision (not) to refer, such as the consequences of referring in terms of delays or the importance of the issue at stake. There is some variance in the way in which the highest court apply their duty to refer. The highest Dutch administrative courts and the UK Supreme Court have been pragmatic while the Dutch and Irish Supreme Court have been more loyal and stricter. Dutch lower courts have been reluctant to refer because of their position as fact finders in the judicial hierarchy, whereas (most) Irish and UK lower courts applied a 'better sooner than later' logic to avoid unnecessary litigation.

Open access

Jasper Krommendijk

Institutional and organisational factors related to the institutional dynamics such as the need to meet 'production targets' have been a factor in the Netherlands, while personal factors and differences between individual judges have played a role in all three jurisdictions. There are also notable differences as to the role of the parties. In more adversarial systems such as the UK and Ireland, courts are not likely to refer out of their own motion or when the parties are opposed. By contrast, most of the references of the highest Dutch courts are made without any request of the parties thereto.

Open access

Jasper Krommendijk

The empirical results show that the emphasis of politico-strategic reasons in the literature is not justified. These reasons only account for a small part of the references. Some references in the field of migration in the Netherlands can be explained by leapfrog arguments, while this logic has been almost completely absent in the United Kingdom and Ireland. Courts in all three jurisdictions have also hardly acted out of empowerment considerations. Some decisions not to refer of UK courts can be attributed to intergovernmentalist motives, but not so much from the idea that the legislator or the executive should be protected. Rather the logic is to prevent an all too far-reaching interpretation of EU law affecting the constitutional set-up and parliamentary sovereignty. This chapter also reflects on the role of popular sentiment and Brexit in relation to UK courts. This logic has worked in opposite ways. On the one hand, it has stimulated some (lower) UK courts to quickly refer before the withdrawal is a fact. On the other hand, some decisions not to refer can be attributed to a desire not to further fuel the flames.

Open access

Jasper Krommendijk

This chapter addresses the deficiencies in the workings of the preliminary ruling procedure, both from the perspective of the CJEU as well as national courts. It will show that the CJEU has not approached the procedure as a (horizontal) dialogue or as a cooperative endeavor, even though it has employed this discourse consistency. Especially judges in the Netherlands and the UK were critical of the 'ivory tower' mentality of the CJEU and noted that in practice the interaction has been more like a vertical monologue. Several problematic features, such as the limited involvement of national courts after the referral ('black box'), will be highlighted.

Open access

Jasper Krommendijk

Despite cautious satisfaction with the case law of the CJEU, judges, especially Dutch and UK judges, have been critical of several individual CJEU judgments. Two type of problematic judgments will be discussed. Firstly, judgments that contain no or an ambiguous answer, also because the CJEU reformulated the questions or because it deliberately dodged the question. Secondly, judgments that wrongly appreciate the national legal framework or the facts. This chapter will also explain why some judges have been more satisfied with CJEU judgments than others. This can be partly attributed to the formulation of the questions by national courts and the discursiveness and detailedness of their orders for reference.

Open access

Jasper Krommendijk

This chapter will reveal the somewhat surprising conclusion that national courts have almost always fully implemented the CJEU answer. This is remarkable in the light of the findings discussed in the previous chapter, namely the judges appraisal of their interaction with the CJEU and their dissatisfaction with some answers of the CJEU. Several prominent examples will be discussed.

Open access

Jasper Krommendijk

The conclusions offer some suggestions for improvement of the procedure and the interaction between the CJEU and national courts, in addition to summarizing the findings and sketching the implications of this research for theory building. It will also sketch suggestions for national courts to ensure that they refer relevant questions in a good manner. This chapter also examines the question whether there is a relationship between the national judges' perception of their interaction with the CJEU and its answers and their willingness to refer cases in the future. It will show that these feedback loops have so far been absent in the Netherlands and Ireland. Feedback tendencies have been prevalent in the UK in the last decade and could thus explain the drop in the number of references. The latter finding is an important warning for the CJEU and national courts in other EU Member States. In order to ensure that the preliminary ruling procedure still works in the decades to come, both the CJEU and national courts should change some of their previous approaches.