“The European Court of Justice and National Courts:
Strategic Interaction within the EU Judicial Process”
Stacy A. Nyikos∗
The University of Tulsa
[email protected]
Abstract: This paper presents the results of a pioneering venture into opening up the black
box of the EU judicial process and determining how the European Court of Justice and
national courts work together. The project investigates the effects of certain independent
variables - legal system experience, issue transparency and compliance - upon courts’
decisions to maneuver strategically within the referral process in the pursuit of their own
agendas. The findings indicate trends in the employment of strategic maneuvering that
elucidate how courts interact with one another, as well as the role that courts take on
during the development of a fledgling political system. In addition, the findings provide
empirical evidence concerning whether Member States’ preferences or courts’ pursuit of
their own agendas have driven the referral process. The results obtained support
neoinstitutionalist claims that it is courts working in pursuit of their goals, rather than those
of the Member States, that have driven courts to maneuver strategically within the EU
judicial process. Furthermore, in their attempts to attain their own goals, courts have
helped to create a legal uniformity among the Member States’ systems crucial to the
development of a new community.
Why study the interaction between national courts and the European Court of
Justice (ECJ)? There are three main reasons. First, the European Union’s (EU) preliminary
reference process allows national courts to send questions pertaining to EU law to the ECJ
in a specific case, which thereby enables them to go outside the national legal boundaries
to the European legal level to solve a national case. Specifically in the case of Irish courts,
it has been argued by Ailbhe Smyth that “typically, when the judgments delivered by Irish
courts have been unsatisfactory or unworkable, the tendency has been to turn to the
European courts for more liberal interpretations” (Smyth 1992, 115). Hence, the European
Court of Justice is viewed as an alternative means of achieving a certain desired verdict
that may be unlikely based solely on internal, national law.
Examining the employment of EU law within a national case is akin to
investigating the employment of U.S. federal law within a state case, as novel today within
the EU as it was two hundred years ago when the U.S. was still attempting to become a
∗
This material is based upon work supported by the National Science Foundation under
Grant No. 9904983.
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united body of states (Mancini 1995; Lenaerts 1990). Therefore, studying the EU legal
process is a means of investigating the evolution of a legal system within a quasi-legal
state during its very early developmental stages, which allows insight into the more general
role that institutions play during the formation of a new legal entity. According to Keohane
and Hoffmann, the ECJ has played an irreplaceable role: “Of all Community institutions,
the Court has gone farthest in limiting national autonomy, by asserting the principles of
superiority of Community law and of the obligation of member states to implement
binding national acts consistent with Community directives” (Keohane & Hoffmann 1991,
11-12). Thus, studying the ECJ and national courts’ interaction is like investigating a
portion of the slow birth of a political star, in and of itself an interesting and rare event.
Second, studying the process allows insight into when and how the EU judicial
process is employed by the pertinent EU and national institutions, as well as by citizens
and litigants. By breaking the preliminary reference process down into its three main
stages - national court referral, ECJ ruling, and national court compliance – it is possible to
isolate three main junctures within the judicial decision-making process when the ECJ,
national courts and litigants have an opportunity to influence and be influenced by one
another’s behavior.
Third, the investigation enables us to address the debate concerning whether the
actions of courts within the EU legal process are driven by others’ preferences, in this
instance, those of the Member States, or by courts pursuing their own agendas.
Consequently, this study focuses upon the diverging theoretical approaches to the ECJ and
the EU judicial process, intergovernmentalism and neoinstitutionalism, and through
empirical findings shows that the intergovernmentalist assertion that the ECJ is driven in
its decisional calculus by Member State preferences is a poor indicator of strategic action
on the part of the European Court. Rather, it is the interaction among courts within the EU
judicial process that far better predicts and explains when courts, both the ECJ and
national, will maneuver within the preliminary reference process. Such findings enable us
also to expand the debate within American Politics concerning predominantly the U.S.
Supreme Court and its strategic behavior (Dahl 1957; Murphy 1964; Ulmer 1982; Caldeira
& Wright 1988; Pacelle 1991; McGuire & Palmer 1995 & 1996; Epstein & Knight 1998)
to a similar legal system and show that strategic action on the part of judges crosses not
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only oceans but also national boundaries within Europe, and that such action is driven by
similar court preferences, i.e. the ability to set and control a court’s agenda.
This project is one of the first to open up the black box of the preliminary reference
process and study it empirically. There have been extensive studies that investigate the
influence of the preliminary reference process upon European integration (Volcansek
1986; Alter 1996a & b; Garrett, Kelemen & Schulz 1998; Stone Sweet & Brunell 1998a &
b; Stone Sweet & Caporaso 1998). Yet, none of those studies investigate empirically the
inner workings of the preliminary reference process itself and strategic interaction among
judges concerning the decision to refer, the ECJ treatment of the preliminary reference, and
the implementation of the decision by the national courts. Consequently, this project is
novel in that it seeks to determine if, empirically, the theory of strategic judicial behavior is
exportable to courts outside the United States, whether that strategic behavior is driven by
the pursuit of courts’ agendas, or those of other actors, and finally, what effect such
behavior may have upon EU integration. Such a study offers scholars a first insight into
what overall trends exist within the strategic use of this system.
The Preliminary Reference Process
The preliminary reference process, broadly defined, begins with a question of European
Union law the answer to which a national court determines is necessary in order to resolve
the legal case before its bench. The question is referred to the European Court of Justice,
which renders an interpretation of European Union law in the form of a ruling, and then
sends this answer back to the national court, which then resumes proceedings and renders
its own decision regarding the facts of the case in the national dispute (Lasok 1984;
Anderson 1995; Hunnings 1996). The first preliminary reference case was not sent to the
Court until three years after its creation. Since then, the combination of national judges
being sent to the ECJ and then often returning to their legal systems "europeanized"
(Plötner 1998), seminars and roundtables held by the ECJ to introduce the national judges
to the EU legal system and the Court (Schermers & Waelbroeck 1992), and the steady
increase in "transnational exchange, e.g. trade investment, the development of European
groups, networks and associations" (Stone Sweet & Sandholtz 1998, 2), has resulted in a
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steady stream of preliminary references to the ECJ, which average today over two hundred
per year.
The preliminary reference process itself is outlined in Art. 234 EU Treaty (ex.
Article 177 EEC Treaty), which states:
The Court of Justice shall have jurisdiction to give preliminary rulings concerning:
a) the interpretation of the Treaty;
b) the validity and interpretation of acts of the institutions of the Community;
c) the interpretation of the statutes of bodies established by an act of the Council,
where those statutes so provide.
Where such a question is raised before any court or tribunal of a Member State, that
court or tribunal may, if it considers that a decision on the question is necessary to
enable it to give judgment, request the Court of Justice to give a ruling thereon.
Where any such question is raised in a case pending before a court or tribunal of a
Member State, against whose decisions there is no judicial remedy under national
law, the court or tribunal shall bring the matter before the Court of Justice.
Hence, since its creation, the Court has had jurisdiction over cases that pertain either to the
interpretation, but not validity, of primary law, or to the interpretation or validity of
secondary law (Dauses 1995).
The preliminary reference is comprised of three main stages: 1) the national court’s
decision to refer; 2) treatment of the reference by the ECJ; and 3) national court/litigant
implementation of the ECJ decision (de la Mare 1999, 216; Volcansek 1986). Within the
first stage, the national court decides that to solve the case before its bench, it is necessary
to resolve the inherent EU legal dispute in the case. It therefore sends a description of the
facts of the case and the questions that it finds pertinent to the resolution of the case to the
ECJ. During the second stage, the European Court of Justice informs all involved parties,
EU institutions and Member States of the case, at which point, written observations can be
submitted. Oral observations follow thereafter. Once the Court has heard oral observations,
it then meets in private. These meetings are strictly confidential, and no information can
ever be divulged concerning their content. This stage ends when the ECJ issues an opinion
answering the legal questions posed. The opinion has no concurring or dissenting opinions
nor does it divulge the breakdown of the judges’ vote. During the third stage, the national
court receives the ruling of the ECJ and then meets to render its own decision in the case,
which applies the ECJ’s interpretation of EU law to the actual facts of the case. In some
instances, litigants agree to abide by the decision of the ECJ, negating the necessity of the
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national court’s ruling in the case. This is referred to as litigant desistement. It is, therefore,
with these three stages and the possibilities of strategic action on the part of judges and
litigants within them that this project is concerned.
Theoretical Approaches toward the European Legal System
Theoretical debate concerning the European Court of Justice and the EU legal
system has developed into two diverse approaches toward the Court based generally upon
actor preferences that drive the actions of the European Court of Justice. The predominant
schools of thought, intergovernmentalism and neoinstitutionalism, are discussed below.
Their influence upon the present project follows.
Intergovernmentalism
Intergovernmentalism came about as a reaction to the neofunctionalist approach to
the European Union developed during the late 1950s and 1960s and its inability to explain
the resurgence in Member State autonomy during the Empty Chair Crisis, as well as the
stagnation in European economic integration in the 1970s. Neofunctionalism argues that
integration is driven by interest groups’ preferences, not Member States’, and the benefits
that they derive from joint governance (Haas 1958). Integration is defined as “the process
whereby political actors in several distinct national settings are persuaded to shift their
loyalties, expectations and political activities toward a new and larger center, whose
institutions possess or demand jurisdiction over the pre-existing national states” (Haas
1961, 366-367). Supranational institutions play an integral role in the integration process
since “they most readily lend themselves to accommodation on the basis of upgrading
common interests” (Ibid., 377). What is more, they do so independently of the Member
State governments, whose national sovereignty progressively diminishes as a function of
integration. Integration is viewed by neofunctionalists as a self-sustaining process, due to
the role that spillover plays in the integration process (Lindberg 1963). In short, as
integration occurs in one area, it either necessitates integration in other areas, or new
groups become aware of its benefits, which then leads to integration in new sectors.1
1
Neofunctionalism differs from functionalism in that the latter, according to Haas, was unable to explain
why integration had occurred in some areas but not in others. To account for this, Haas argued that a theory
of politics was required. The role of groups needed to be brought into the analysis to explain why certain
areas had experienced integration and others had not (Haas 1958).
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The Empty Chair Crisis in 1965, though, brought out certain weaknesses in the
neofunctionalist approach. A Member State, in this case France, walking out of
deliberations and thereby asserting its sovereignty and bringing integration to a standstill,
resolved only by a hard won compromise (Dinan 1999), was poorly captured by the theory.
Consequently, it was at this time that scholars began to reassess the role of states within the
integration process. Stanley Hoffmann, shortly following the Empty Chair Crisis,
published an article that began to change the theoretical focus from the role of
supranational institutions to the role of Member States within integration (Hoffmann
1966). His theory, which later became known as intergovernmentalism, is based upon the
international relation’s realist tenets that emphasize the state as the basic unit of analysis
and intergovernmental bargains among Member States as the driving force behind
integration. To understand integration, it is argued, one must understand what drives
Member States to reach bargains. In so doing, it becomes clear why integration is not selfsustaining, but rather, occurs in sectors where it is in the Member State governments’
interests.
Intergovernmentalist theory was reinforced by sputtering economic integration in
the 1970s and early 1980s that was not revived until the resolution of the British EU
payments issue that then opened up the way for negotiations on deeper integration
ultimately resulting in the Single European Act (SEA) in 1986 (Dinan 1999). Again, the
revival of integration brought about by bargains among the Member State governments
embodied by the SEA Treaty reinforced intergovernmentalist concentration upon the
Member State governments as the driving force behind integration. According to Robert
Keohane and Stanley Hoffmann in their investigation of the bargaining among Member
States that led to the SEA: “The EC is best characterized as neither an international regime
nor an emerging state but as a network involving the pooling of sovereignty…the EC has
always rested on a set of intergovernmental bargains, and the Single European Act is no
exception to this generalization” (Keohane & Hoffmann 1991, 10).
It was during the early 1990s, following the SEA, that intergovernmentalists began
to focus their attention upon the European Court of Justice and its role in the integration
process (Garrett 1992, 1993; Garrett & Weingast 1995; Garrett, Kelemen & Schulz 1998).
Garrett, focusing upon the power of Member States over EU institutions, argues that the
6
“extension of the power of the European court stems” not from the inattention paid to it by
member state governments but rather reflects the fact that the EU “legal system
is…actually – and seemingly paradoxically, given its consequences for national authority –
consistent with the interests of member states” (Garrett 1992, 556-57).
Garrett posits that the Court, whose main interest is “in extending the scope of
Community law and its authority to interpret it,” is constrained in doing so by the reaction
of the Member State governments (Garrett, Kelemen & Schulz 1998, 154-155).
Governments, in turn, prefer “a well-defined rule of law [since it] foster[s] mutually
beneficial economic exchange” (Ibid., 156). Yet, the Member State is constrained by the
possible loss of autonomy through adherence to a decision with which it disagrees, as well
as adverse effects of an ECJ decision for some of its constituents (Ibid). Furthermore,
according to Garrett et al., “the Court’s legitimacy ultimately rests on the support of
member governments and hence on its serving as an impartial interpreter of EU law. In
order to maintain its legitimacy, the Court will seek to avoid making decisions that it
anticipates governments will defy” (Ibid., 151). Thus, the interaction between national
courts and the ECJ, as well as their preferences and goals, are secondary, as it is the
Member State governments, the founding fathers of the EU, whose support through
compliance is most important. In essence, then, the ECJ finds itself in a repetitive game
with Member States, in which other players, such as the Commission or national courts,
are of secondary importance. In intergovernmentalist terms, the European Court acts as the
agent of the Member State principals.
Yet, the influence of the Member State governments over the ECJ is questionable.
In order to overturn a Court decision regarding treaty interpretation, Member States must
revise the treaty, but “the threat of treaty revision is essentially the ‘nuclear option –
exceedingly effective, but difficult to use – and is therefore a relatively ineffective and
noncredible means of Member State control” (Pollack 1997, 188-119). A treaty revision
would require all Member States to agree unanimously to the change, which is an
exceedingly difficult task to accomplish.2
2
Nevertheless, if the ECJ’s ruling deals with secondary legislation, such as directives or a regulation,
Member States do enjoy greater leeway in altering the statutes in question.
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Furthermore, in the case of preliminary references, the possible cost to the ECJ of
Member State governments’ noncompliance is limited in nature because Member State
governments’ “hands are tied by national courts being responsible for implementation of
Court judgments” (Chalmers 1997, 172). Granted, Member States are brought before the
ECJ in both preliminary reference as well as direct action cases. In the latter category,
compliance does depend upon direct Member State adherence to the ECJ decision, and for
this category, the ECJ may indeed be more sensitive to the position of the Member State
before the Court.3 Yet, if a Member State refuses to comply with an ECJ decision in a
direct action case, it is also possible for the case to return as a preliminary reference, thus
forcing the national government to, if it desires to continue practicing noncompliance, defy
its own court system.4 For preliminary references, once an ECJ decision has been rendered,
it is the responsibility of the national court that referred the case to ensure that there is
compliance with the decision. Hence, “member governments seeking to avoid compliance
would have to defy not only the ECJ but their own national courts as well, thereby raising
the costs of noncompliance even further” (Pollack 1997, 118).
Finally, quantitative research on the influence of Member States on the ECJ’s
decisions shows markedly less interest paid by the ECJ to Member State’s arguments or
positions (Pierson 1996; Kilroy 1996; Stone Sweet & Brunell 1998a) than Garrett et al.
assert. It is for this reason that many scholars argue: “Under the judicial system established
by the Community, national courts are indispensible to the enforcement of the Court’s
judgment” (Cappelletti & Golay 1986, 338). Hence, it is logical that neoinstitutionalism
has shifted the focus away from the interaction among Member States and the ECJ toward
3
Most recent Member State implementation studies “focus on the implementation of one of two sectoral
policies, frequently in the area of environment and social policy, in three or four countries, usually including
Great Britain, France and Germany” (Boerzel 2001). The first comprehensive investigation of Member State
implementation and compliance with Commission action in overall infringement proceedings has been
conducted by Tanja Boerzel (Ibid). She has discovered that Member States actually have been relatively
proficient at transposing EU law into national law, and that there has not been an increase or decrease in
nonimplementation over time, but rather a stable pattern.
4
See the German bananas dispute in which exactly this scenario occurred: Federal Republic of Germany v.
Council of the European Union Case 280/93 [1994] ECR I-4973 and the follow up preliminary reference
cases T. Port GmbH & Co. KG v. Bundesanstalt für Landwirtschaft und Ernährung Case 68/95 ([1997] 1
CMLR 1) Lexis Nexis. EURCOM. Another good example of the employment of direct action and
preliminary reference procedures to resolve a national legal issue are the French waste oil cases. See
Commission v. France Case 173/83 ECR [1985] 491 and related preliminary reference cases beginning with
Case 175/83. For further reading, see Dashwood & White 1989.
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the interaction among the ECJ and national courts, the main implementing agents of ECJ
decisions.
Neoinstitutionalism
Neoinstitutionalism, in its application to the ECJ, has been the outgrowth of the
convergence of various schools of thought: neoinstitutionalism, neofunctionalism and
judicial empowerment. The development of a neoinstitutionalist approach to the European
Court of Justice was influenced by the resurgence of institutions in research conducted in
other areas of political science in the late 1980s (Eckstein 1988; March & Olsen 1989;
North 1990; Knight 1992), which began to spill over into the study of courts (Smith 1988).
Second, European scholars began studying “the strategic choice-contexts facing European
judges” (Stone Sweet & Brunell 1998b, 69), which revived some of the neofunctionalist
tenets and resulted in the theory of judicial empowerment (Stein 1981; Weiler 1981, 1991,
1994; Alter 1996a & b, 1998a & b, 2001). Ultimately, research and theorizing done on
these levels converged in the neoinstitutionalist approaches adopted toward the ECJ in the
1990s. To understand neoinstitutionalism, it is necessary first to highlight some of the
important aspects of judicial empowerment that have been employed by
neoinstitutionalists, and then to discuss how the latter have gone beyond judicial
empowerment in the study of European integration and the role of the ECJ and national
courts and their preferences, rather than Member State governments and theirs, within
integration.
Judicial empowerment borrows from the interest group and supranational
institutional focus of neofunctionalism by arguing that the preliminary reference process
has been used and compliance with ECJ decisions has been high because the procedure
empowers litigants, lawyers and judges within their respective systems. According to
Weiler: “Effectively, individuals in real cases and controversies (usually against state
public authorities) became the principal ‘guardians’ of the legal integrity of the
Community law within Europe similar to the way that individuals in the United States have
been the principal actors in ensuring the vindication of the Bill of Rights and other federal
law” (Weiler 1991, 2414). Concerning judges, he argues that the EU legal “system gave
judges at the lowest level power that had been reserved to the highest court in the
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land...And the ingenious nature of Article 177 ensured that national courts did not feel that
the empowerment of the European Court of Justice was at their expense” (Ibid., 2426). In
other words, courts of first instance can circumvent higher courts and insulate their
decisions against appeal nationally by referring a case to the European Court of Justice,
which then renders its decision concerning the controversy. This ruling brings with it the
rule of law of the European Union, which makes appeal nationally far less likely (Alter
1996a & b; 1998).
Finally, within this process, “the willingness of national courts, especially of lower
courts, to play their role in the partnership will widen the circle of actors, individuals,
corporations, pressure groups and others who may build a stake and gain an interest in the
effectiveness of Community norms” (Weiler 1993, 423). Therefore, the more often
individuals bring EU issues before national courts, and the more often national courts
address these issues in preliminary references to the ECJ, the wider the circle of potentially
affected national players and thus the larger the number of “guardians” of EU law and
procedure. This characteristic of the process ensures an ever-expanding category of
players.
The judicial empowerment approach’s focus, unlike intergovernmentalism’s, is not
solely on the Member States’ governments and their interests but rather on those of the
national players responsible for generating cases, i.e. litigants and lawyers, and then on
those responsible for ultimately sending cases to the ECJ and implementing the resulting
judgments, i.e. national courts. Nevertheless, in concentrating solely upon the decisional
calculus of judges, the judicial empowerment approach neglects important, nonjudicial
events that motivate referral, such as variations in transnational trade and the generation of
EU legislation (Golub 1996b; Stone Sweet & Brunell 1998a & b). For this reason, judicial
empowerment is not very useful in explaining variation in the referral of cases to the ECJ
across Member States (Stone Sweet & Brunell 1998b).
Parallel to the theoretical development of judicial empowerment, Anne Marie
Slaughter and Walter Mattli (Burley & Mattli 1993; Mattli & Slaughter 1995, 1996, 1998a
& b), borrowing from both that school of thought and neofunctionalism, created a modified
neofunctionalist approach to the ECJ (Stone Sweet & Brunell 1998b, 69), which has acted
as a bridge between the varying schools of thought, leading the way to other
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neoinstitutionalist approaches to the ECJ and integration. In part, this development has
been aimed at countering the claims of intergovernmentalists regarding the role of the ECJ
as “a faithful agent of the EU member states” (Mattli and Slaughter 1998a, 178). Mattli
and Slaughter argue that understanding “the variance in the process of constructing the EU
legal system is impossible without focusing on the ways in which alliances with
supranational and subnational actors can advance the interests of some government
institutions (courts) against others (either other courts or the executive or legislative
branches)” (Ibid, 179).
In investigating the preliminary reference process, Mattli and Slaughter argue, like
proponents of judicial empowerment, that individuals at the national level, most
specifically lawyers and judges, develop a vested interest in the application of European
law and thereby European integration. They seek to develop and employ the preliminary
reference as a mode for advancing their own interests over those of other national
institutions, such as the government or other courts. In addition, “the ECJ and lower
national courts also have a self-interested stake in this process: lower national courts [seek]
enhanced power within national legal systems through a partnership with the ECJ, and the
ECJ [seeks] to promote its own prestige and power by raising the visibility, effectiveness
and scope of EU law” (Ibid., 180). Judges are driven in this process by three main goals: 1)
judicial review; 2) prestige and power in relation to other national courts; and 3) the
promotion of policy positions (Mattli & Slaughter 1998a, 190). In addition, they argue that
each of these preferences explains not only acceptance but also rejection of EU law. The
constraints that are involved in this process are the concepts of judicial legitimacy in rule
of law states. The latter can vary from nation to nation depending upon: a) national policy
preferences; b) national legal culture; and c) national legal doctrine (Ibid., 198). Yet,
similar to proponents of judicial empowerment, Mattli and Slaughter concentrate more
upon one piece of the integration puzzle, court interaction, without bringing in how
transnational economic activity and/or the generation of EU legislation may actually
function in combination with judicial activity to explain and predict legal integration.
Alec Stone Sweet et al. have done so, creating a more complex neoinstitutionalist
approach to judicial activity and European integration, which they have also tested
empirically (Stone Sweet & Brunell 1998a & b; Stone Sweet & Caporaso 1998; Stone
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Sweet & Sandholtz 1997, 1998). In short, they argue along the lines of classic Haas’
neofunctionalism, that European integration is a result of “a response to the demands of
those individuals and companies who need European rules, and those who are advantaged
by European law and practices compared with national law and practices” (Stone Sweet &
Brunell 1998b, 72). Further, the rate at which integration has taken place is a direct result
of “the development of (1) rules to govern transnational activities, (2) the capacity of
supranational organizations, like the Court and the Commission, to respond to those
demands, and (3) a stable and effective means of resolving legal disputes, particularly
those that embody conflicts between supranational and national rules” (Ibid). They argue
that one will see variation in references across time, countries, and legal area due to an
increase in EU law and transnational trade, coupled with individuals’ desire to exit the
national legal system and gain access to the European one because the latter offers a more
beneficial arena than the national one for their activities. They go on to test their theory by
employing all cases referred to the ECJ between 1961 and 1995, and find a strong
intercorrelation among an increase in transnational trade, and increase in EU legislation,
and an increase in preliminary references (Stone Sweet & Brunell 1998a & b).
Further, they also test intergovernmentalist assertions that it is Member State
government preferences that shape ECJ decisions. They measure whether the ECJ, in its
preliminary reference decisions from 1970 to 1992 for the social provisions area, “had
accepted a national rule of practice as consistent with EC law, or it had declared it to be in
violation of EC law” (Stone Sweet & Caporaso 1998, 122). They find that in 53% of the
decisions, the ECJ ruled against Member State legislation. In addition, they also note that
Bernadette Kilroy found that of the 122 free movement of goods cases that she analyzed,
the ECJ struck down national legislation in 66% of the cases (Kilroy 1996). Hence, it
appears that there are strong theoretical and empirical grounds to question the assertion of
intergovernmentalists that Member State interests drive ECJ decisions.
In reviewing the literature on the ECJ, national courts, and the dynamics of
integration, it is clear that scholars agree that the European Court of Justice, national courts
and litigants are all strategic actors within the preliminary referral process, taking into
account the preferences of other actors in determining their course of action. Yet, they
disagree concerning whose preferences drive players actions, as well as the role that EU
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legal codification and interstate trade have played within the EU judicial process. It is the
focus of this paper to apply a modified neoinstitutionalist approach to the entire
preliminary reference process in order to determine: 1) how national courts and the ECJ
actors maneuver within the referral process to create decisions that reflect their own
agenda; 2) whether Member States’ preferences determine the decisional calculus of the
ECJ, or whether the Court is more attuned to its own agenda and to some extent its main
implementers, national courts; and ultimately, 3) what effect this has had upon integration.
Strategic Maneuvering within the Referral Process
Do the ECJ and national courts maneuver strategically within the preliminary
reference process, and if so, how? Following the general vein of neoinstitutionalist
reasoning, it is argued that neither the ECJ nor national courts are dutiful, passive agents of
the Member States or legal system, but rather active, strategic, and equal participants
engaged in the pursuit of their own agendas, that seek to influence each other to achieve
their goals. In attempting to influence one another and thereby pursue their interests more
efficiently and accurately, both the ECJ and national courts take advantage of
institutionally acceptable loopholes within the preliminary reference process.
National courts and ECJ are driven in this process by one overarching goal: to
improve their position within their legal system. For the European Court of Justice, this
means acting in a way that favors more autonomy and greater integration for the
supranational EU, without losing the support of the national courts (Stone Sweet &
Caporaso 1998; Mattli & Slaughter 1998a). For the national courts, this means acting in a
manner that results in greater power and/or autonomy within the national legal system in
relation to other courts, without losing excessive control over national law to the ECJ
(Alter 1996a). Further, neither works specifically in the Member States’ interests nor those
of the legal system. In intergovernmentalist terms, they are not the agents of Member State
principals, but independent and equal actors pursuing their own interests.
Courts’ main vehicle for pursuing these interests is by shaping and revising law
through cases. Courts inherently do this when creating opinions. They interpret the law in
the manner they perceive as correct and attempt to render decisions that will be upheld.
Nevertheless, in any judicial process there are instances in which courts can do more than
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just follow procedure when interpreting law. The preliminary reference process
specifically offers instances – deciding to refer, ECJ treatment of the reference, and
national court implementation - in which courts can attempt to change law or legal
outcomes through strategic maneuvering within institutional constraints and thereby more
effectively pursue their goals.
A court is, at the same time, constrained by the legal system experience, the
transparency of the legal area, and compliance with the court’s decision. The first
constraint, legal system experience, refers to the experience the ECJ and the referring
national court have with one another. In other words, do the ECJ and national court find
themselves in a repetitive game or a one shot deal. For national courts, repetition brings
with it more experience with the EU judicial process, which lowers the costs of time
needed to become familiar with EU law before referring a case, or even realizing that a
case could be referred. Therefore, more experienced courts should take advantage of
opportunities to act strategically more often. At the same time, such courts have less ability
ultimately to defy ECJ decisions because they have become embedded in a repetitive legal
game. Therefore, implementation of ECJ decisions should be higher for in more
experienced courts. In turn, the ECJ is constrained by this same variable. When the game is
a repetitive one, the ECJ is more embedded in regards to the referring court. The likelihood
that the ECJ will deal with that national court again in the future increases. This should
influence how the ECJ acts strategically within the referral system, increasing the
likelihood that its decisions will remain within the legal boundaries defined by the
questions presented in the case.
The second constraint that plays a role in the preliminary reference procedure is
issue transparency. Issue transparency refers to the level of EU codification of a legal area
(Stone Sweet & Brunell 1998a). The more codification there is, the higher the transparency
within a legal area. Areas that are more fundamental rights in nature, such as social
provisions, have been subject to less EU codification. Hence, the national courts have more
national jurisdiction to lose, and the ECJ is faced with far less legal footing in deciding
questions in areas where there is less EU law. Areas such as agriculture and the free
movement of goods, on the other hand, are covered in far greater detail not only by EU
treaty law but also by EU secondary law, i.e. directives and regulations. Consequently,
14
national courts have less opportunity to create a novel interpretive framework for the legal
issues in a case, but the ECJ has more legal footing for its decision. Hence, as issue
transparency increases, the chances for strategic maneuvering on the part of national courts
decreases, but the likelihood that the ECJ’s decision will expand beyond bounds of the
questions presented increases.
The third constraint, compliance, refers to the willingness of one court to comply
with another’s decisions, regardless of whether it agrees with the ruling. Through
compliance, courts procure authority and thereby “judicial effectiveness” (Gibson &
Caldeira 1995, 460). Compliance is therefore a valid constraint on courts, as without it,
neither the national court nor the ECJ is able to advance its legal jurisprudence. In addition,
compliance is also an operational indicator for legitimacy. The more compliance a court
enjoys, the greater its legitimacy, and hence, the more effective the court is judicially
(Ibid). Without compliance, legitimacy may suffer. Hence, the more one court system
complies with the actions of the other, the more legitimacy the latter amasses. Also, the
more one court complies with another’s rulings, the more embedded both courts become in
the judicial process, and the less likely they are overtly to defy the express interests of the
other. For national courts, the more their compliance is at issue nationally, i.e. the lower
the court, the more likely it is that they will attempt to shape the ECJ decisional calculus.
For the ECJ, the more national court compliance is at issue, the greater the likelihood that
the ECJ will stay within the legal boundaries presented by the national court in the case.
The Three Stages of the Preliminary Reference and Possibilities for Strategic Behavior
There are three main junctures at which strategic action may occur: 1) the decision
to refer; 2) the ECJ treatment of the referral; and 3) national court/litigant implementation
of the ECJ decision. Within these stages, there are institutional loopholes open to courts
that allow them to pursue more effectively their goals. During the first stage, judges have
the ability, although nowhere explicitly stated in EU law on the referral process, to choose
to include an opinion with a case in an attempt to shape the decision then rendered by the
ECJ. During the second stage, the European Court, which has no docket control, can,
nevertheless, choose not to answer all of the questions presented, either deleting questions
or adding new ones. In other words, it can either suppress or expand the issues presented to
15
it by answering fewer or more questions than referred. Finally, during the third stage, the
national court can choose not to implement or to evade a decision of the ECJ. In addition,
litigants can choose to cut the costs of time and money incurred while awaiting a national
court ruling following an ECJ decision, and voluntarily comply with the ECJ ruling.
Figure 1 – see appendix
Stage 1: The National Court’s Preliminary Opinions
During the first stage, national courts determine that there is a question of EU law
at issue in the case, the answer to which is necessary to resolve the pending legal dispute.
In preparing the case for referral, national courts may decide to include a preliminary
opinion with that referral, which not only offers an interpretive framework for the legal
issues in the case but also answers the questions sent to the ECJ. National courts will not
send preliminary opinions in every case, though, as they must constantly weigh the costs of
opinion formation and writing against the possible benefits of influencing the ECJ
decision. They are most likely to do so, first of all, if the court finds itself in a repetitive
game with the ECJ. That is, individual courts that are repeat players in the referral process
have an increased knowledge of EU law.5 With this comes an increased awareness of the
loophole in the EU judicial process that allows national courts to send preliminary
opinions, as well as an increased awareness of what there is jurisprudentially to lose by
allowing the ECJ free rein to decide all cases as it sees fit.
Second, preliminary opinions are dependent upon issue transparency. If a legal area
is well-codified, it is less likely that the EU legal text is ambiguous and leaves room for
creative interpretation. In addition, such areas have also previously been subject more
referrals (Stone Sweet & Caporaso 1998), which diminishes even more the likelihood for
interpretive license. Hence, the benefits of writing a preliminary opinion are more likely to
outweigh the costs of opinion-writing in a less codified area than in an area of law in which
there is far more EU codification and for which there have been more referrals.
Finally, expected compliance also plays a role in the decisions to draft an opinion.
The lower the level of court involved, the less likely one will take note of its decision and
the greater the likelihood that its rulings will be appealed to a higher court or questioned by
5
Stone Sweet & Brunell find evidence in their research of a learning curve on the part of courts (Stone
Sweet & Brunell 1998a).
16
the national government, i.e. internal national compliance becomes an issue because appeal
becomes more likely. Thus, lower courts must work harder to make their decisions known
and to avert appeal. Consequently, lower courts have more reason to clarify to the ECJ the
position that they find legally correct and wish to solidify against internal appeal.
Within this stage it is also possible to test whether national courts influence the
decision of its Member State government to send written observations in a preliminary
reference. This is essentially the opposite of the intergovernmentalist assertions that courts
are the agents of governments. Rather, building upon Stone Sweet & Caporaso’s (1998)
work upon the reactive rather than proactive activities of Member States, it is argued that
Member State governments will be less likely to send written observations if the national
court has already framed the legal debate through a preliminary opinion. Only when the
Member State disagrees with the position taken by the referring court will it react by
sending written observations to the ECJ to clarify the government’s position on the
national statutes in question.
Stage 2: ECJ Treatment of the Preliminary Reference
During the second stage of the referral process, the ECJ receives the case from the
national court and renders a decision. Since the Court has not docket control, or concurring
and dissenting opinions, its abilities to shape its agenda are narrower than other
constitutional courts. Yet, the ECJ does have the institutionally available tactic of selecting
among the questions presented. The Court can practice two forms of issue selection:
suppression and expansion (Ulmer 1982; McGuire & Palmer 1995, 1996). When the Court
suppresses, it answers fewer questions than those posed. When the Court expands, it
answer more questions than those posed. Like national courts, though, the ECJ will not
employ this tactic in every case. Legal system, issue transparency and compliance will
affect ECJ issue definition in the following manner. The Court is more likely to suppress
questions and less likely to expand into novel legal areas not addressed by the questions
presented when, first, it is constrained by an experienced legal system, i.e. it finds itself
facing an experienced court system in a repetitive game. When the ECJ faces a national
court with which it finds itself in a repetitive game, it is far more likely that the national
court is aware of the legal issues and the amount of room available in EU law for
maneuvering. Furthermore, if the national court has drafted an opinion, and the chances are
17
greater that it has done so, then it is likely the opinion reflects a policy stance that remains
within the bounds of EU law. For these reasons, there is less room left for the ECJ to
maneuver.
Second, whereas lower EU codification in a legal area should result in more
strategic action on the part of national courts, it should result in less for the ECJ. When EU
codification within a legal area is less advanced, the ECJ has less legal footing for a ruling,
and the national court logically has more room to advance its own interpretation. Less
footing for the ECJ means more incentive to stay within the legal bounds set by the
referred questions and less room to expand beyond the questions presented because there is
nothing legally to base such expansive action upon.
Third, the ECJ is less likely to advance beyond the questions presented when
national court compliance is at issue. In other words, if the national court has sent a
preliminary opinion with its referral, the ECJ has already been informed by both the
questions and the answer, of the legal realm acceptable to the national court. Were the ECJ
to go beyond these clearly defined boundaries, it could jeopardize the likelihood of not
necessarily immediate compliance, which nevertheless would be at stake, but more
importantly, further use of the referral process by that court. Why should the national court
continue to refer cases to the ECJ in an overwhelmingly voluntary judicial process, if the
latter refuses to take account of the legal positions advanced by the referring court? For
these reasons, the ECJ is most likely in such instances to employ issue selection to narrow
the scope of its ruling and thereby increase the likelihood of overall compliance.
When these constraints are not present, the Court has more room to go beyond the
legal realm presented by the referred questions. It is therefore less likely to suppress and
more likely to expand when the national court is a first timer in the referral process. In such
instances, the national court, very generally, may not be as aware of the issues or EU law
in question in the case. Its questions and opinion, if one exists, are more likely to be less
refined due to the national court’s inexperience. If the EU area of law is well-codified, this
also gives the ECJ more room for interpretive license as it has more legal footing upon
which to stand. Finally, if national court compliance is not at issue, i.e. there is no
preliminary opinion, then the ECJ has greater leeway in answering the referred questions.
18
By taking advantage of the freedom to decide more broadly, the European Court is able
potentially both to deepen integration and to extend its own future jurisdiction.
To test intergovernmentalist claims that Member State governments’ exert the
greatest influence over the ECJ decisional calculus, it is measured whether the ECJ is
influenced in its decisional calculus by the position supported by the Member State
government. In contrast to such claims, it is argued that the ECJ should agree most often
with that institution that consistently seeks greater integration and serves as the quasiSolicitor General for the ECJ submitting written observations in every case, the
Commission. This should be followed by agreement with its main implementer, the
national court, and finally, agreement with the individual Member State government of the
country from which the case originates.
Stage 3: Implementation of ECJ Decisions and Evasion
During the third stage of the preliminary reference procedure, national courts
receive the judgment of the ECJ and then render a decision of their own, which either does
or does not comply with the opinion of the ECJ. Arguably, this is the stage where the least
strategic maneuvering on the part of courts should take place since national courts are
dependent upon the legitimacy of the ECJ rulings to avoid domestic appeal following the
national court decision. Nonimplementation in any form can threaten the very ECJ
legitimacy that the national court seeks. Furthermore, it is often a part of national law, such
as is the case in Germany, that the referring court must comply with the European Court’s
judgment (Kokott 1998). Nevertheless, if the ECJ delivers a ruling that the national court
does not believe or want to implement, since outright defiance is not a lucrative option, the
form of nonimplementation must be indirect in nature. Re-referral and reinterpretation of
the facts of the case allow national courts such a form of evasion (Volcansek 1986;
Vanberg 1999).
Evasion is more likely, although nevertheless a rarity at best, if the national court’s
legal system is less experienced with the EU legal process, if issue transparency is low, and
if the ECJ does not comply with the questions submitted by the national court, i.e. expands.
Less experience means that the court itself is not as embedded in the repetitive legal
process under investigation. Hence, evasion is more of a viable option for such courts than
19
for entrenched players. Second, the less codification of EU law within the issue area, the
more a national court has to lose and the less legal footing the ECJ’s ruling has. Therefore,
there is more room for evasion. Finally, if the ECJ redefines issues in an expansive
manner, it increases chances of noncompliance or evasion in that the European Court has,
by its actions, gone beyond the issues at hand and addressed ones that the national court
itself may not have had a chance to consider. Thus, the ECJ has potentially encroached
upon legal terrain that has not been willingly conferred upon it by the referring court.
Rather than regular national court strategic behavior at this late stage of the referral
process, though, it is argued that litigant maneuvering should be a more regular occurrence.
If national courts overwhelmingly comply with the ECJ rulings as it is argued here, it is
within the interests of litigants to forego the costs, i.e. time and money, associated with
awaiting a national court ruling that dutifully transposes the ECJ judgment. Instead,
litigants should begin to practice voluntary compliance with ECJ decisions, halting
proceedings at the national level immediately following the ECJ ruling and simply treating
that judgment as if it were the final one. Hence, it is for litigants not courts that the three
independent variables should aid in predicting when strategic maneuvering is expected.
Litigants should be most likely to desist if: 1) the national court is a repeat player; 2) issue
transparency is high, i.e. EU legal codification in an area is advanced; and 3) the ECJ has
remained within the legal realm specified by the questions presented.
Finally, it is argued that Member States have little to do with the national court
decision to implement an ECJ ruling. If a national court were influenced in its decision to
implement an ECJ judgment by the government’s disagreement with the ECJ’s ruling, then
nonimplementation and evasion should occur, if not as often as when the government
disagrees with the ECJ, at least far more often than is predicted. Further, if litigant
desistement occurs in only a minority of the cases, this offers strong evidence that Member
States do not drive a court’s decisional calculus in the referral process, but rather, react to
it. Member States are overwhelmingly litigants in referrals, be it as agencies, local
governments, or as the government proper. If they agree voluntarily to desist and not await
a national court ruling in a referral, then their actions offer significant evidence that
Member States willingly accept the jurisdiction and legitimacy of the European Court of
Justice.
20
If compliance rates are as high as predicted for the national courts and litigants do
practice voluntary compliance in a minority of cases, then it may be necessary to revise
current theories concerning ECJ legitimacy. Until recently, legitimacy has been measured
as a function of popular opinion, and more specifically, diffuse support, which has not
always been overwhelming for the European Court (Caldeira & Gibson 1995; 1997;
Gibson & Caldeira 1998; Gibson, Caldeira & Baird 1998). If, though, national courts and
litigants predominantly comply with ECJ rulings, also with ones with which they disagree,
this indicates that judicial legitimacy may actually be the result of a process which begins
with elites, i.e. national courts, then moves on to elites within the population, i.e. litigants,
and finally, due to years of case proceedings, permeates the general public.
Data and Methods
To test these hypotheses, all preliminary reference cases sent to the Court between
1961 and 1995 that fall within the legal categories, equal treatment/equal pay as a subset of
social policy cases, free movement of workers, and free movement of goods, are
investigated. For the three areas of law, together, the top three Member State court systems
referred 629 cases. Of those, 50 cases were never decided by the ECJ because they were
withdrawn by the national court. Thus, cases which were included within this analysis total
579. Of those, it was possible to code for: 1) preliminary opinions in 574 cases; 2) ECJ
issue selection in 575 cases; and 3) national court compliance in 313 cases.
For each area of law, the breakdown of cases referred by country is as follows:
Equal Treatment (N=59): United Kingdom 47.5% (N=28), the Netherlands 30.5% (N=18),
and Germany 22% (N=13).
Free Movement of Workers (N=90): Germany 35.6% (N=32), Belgium 31.1% (N=28),
France 17.8% (N=16), and United Kingdom 15.6% (N=14).6
Free Movement of Goods (N=430): Germany 57.9% (N=249), France 22.3% (N=96), and
the Netherlands 19.8% (N=85).7
6
Originally, since France and the U.K. tied for the third highest number of referrals in this area, they were
both chosen for the analysis. Some of these numbers changed slightly since there were cases that were
referred but then removed by the national court before the ECJ could rule. Nevertheless, since both France
and the U.K. initially sent the same number of cases, they were both included.
21
The universe of cases rather than a random sampling is employed to test the
hypothesis that there should be differences in national court opinion writing based upon the
legal context in which the case originates. Hence, it is necessary to concentrate on specific
areas of law and countries with high referral rates. Furthermore, this enables testing of
repeat court players by increasing the likelihood of capturing these actors within the data
set.
The complete list of cases was obtained from Alec Stone Sweet, who has compiled
a complete list of all preliminary reference cases sent to the ECJ from 1961 to 1995. One
must bear in mind that this list varies from the list of cases decided from 1961 to 1995, as
there is approximately a two-year time lag between the submission of a case and its
decision. Thus, some cases within the data set were not actually decided until 1998. The
cases were then obtained from the European Court Reports, the official case text for the
European Court of Justice. Case selection does not go beyond 1995 for one very important
reason. Post-1994, the ECJ discontinued the inclusion of the “Facts of the Case” section
within the published version, either paper or web, of the cases. This section is crucial in
that it contains not only the written (and oral) observations of all participating Member
States but also a short description of the position, if any, taken by the national court
regarding the questions posed. Although the judge writing an opinion for the European
Court of Justice sometimes includes the national court’s position in the main body of the
decision, such inclusion is sporadic and often incomplete. Hence, going beyond 1995
would seriously, and unnecessarily, undermine the results.
Methods
Stage 1: Coding National Court Preliminary Opinions
National court preliminary opinions were measured by the inclusion of an opinion
with a preliminary reference or assessed on hand of the questions sent. Overall, coding
within this stage is binary: “opinion,” “no opinion.” A more elaborate system of coding,
for instance, including completely agree, partially agree, or defer to the ECJ, is not
employed in order to simplify the statistical and analytical work. Later research will be
7
Overwhelmingly, Germany has sent the greatest number of cases to the ECJ across all three areas of law.
English courts’ participation is surprisingly high considering its late (1972) entry into the Union. France’s
referral rates, on the other hand, are somewhat low considering its size and long-time participation in the EU.
22
oriented toward teasing out the nuances within signaling, but for the present project, a
simple binary code is most appropriate.
Coding on hand of an opinion is self-explanatory. If a national court states, “we
believe the case should be decided as follows,” then this opinion was noted, coded as an
opinion, and then compared to the ensuing ECJ decision. Not all cases are as simple as
this, yet they nevertheless contain language that indicates the direction the national court
prefers. The most familiar example of obvious issue framing is the S.P.U.C. v. Grogan,
HLRJ 11-12 [1991] 455, case in which the Irish Supreme Court judge states quite clearly
that there is no EU right to travel that overrides the Irish constitutional right to life. Coding
on hand of questions sent is somewhat more difficult, as it is based upon the question
wording. Questioning that entails an opinion is akin to a child asking the parent repetitively
and in slightly varied form whether the child can do something, although the parent has
already repeatedly answered the other versions with the same reply. These comprise,
nevertheless, a very limited number of cases. For example, in the equal treatment of men
and women category, there were less than ten such cases. An example of question wording
is found in the case, Marguerite Johnston v. Chief Constable of the Royal Ulster
Constabulary, Case 222/84 [1986] ECR 1651. In this case, the Northern Ireland Industrial
Tribunal asked the ECJ in seven different ways whether it was lawful to suspend equal
treatment of men and women in the field of employment for security reasons. It was
obvious that the national court was looking for an exception to the EU law, which the ECJ
gave it. This case was coded as an opinion.
Granted, some opinions are unclear. That is, it is not possible to determine in which
direction the national court would have the ECJ go. For these cases, the opinion was
registered, but there was no further investigation of agreement or disagreement between
the national court and the ECJ. Also, cases in which the national court acknowledges the
power of the ECJ to decide the case – in and of itself a very strong indication of ensuing
compliance with the ECJ decision - are treated in the same manner as unclear signals. The
latter two categories comprise, nevertheless, only an extremely small minority of the cases
in which there was a preliminary opinion.
For this stage, legal system experience was operationalized by whether the national
court had referred cases to the ECJ in the past or not. Either the relationship between the
23
two courts was repetitive or a one shot deal. Issue transparency is measured by the amount
of legal codification, which Stone Sweet & Brunell determine in their work (1998a). For
this project, codification increases from the fundamental rights category, equal treatment of
men and women, to the middle category, free movement of workers, to the highly codified
area, free movement of goods. Compliance is measured according to the level of court,
which are divided into first instance, appeals and courts of final instance. This is also a
division determined and employed by Stone Sweet & Brunell in their investigation of these
cases (Stone Sweet & Brunell 1998a).
Stage 2: Coding ECJ Issue Selection
For the second stage, the questions presented in the “Facts of the Case” are
compared with the decisions of the ECJ. For cases post-1994, the questions as expressed at
the beginning of the decision are compared with the answers given in that same text. It is
possible to use this method with such certainty because in cases previous to 1994, the
Court reprinted the national court questions within the Court’s decision as well, and the
ECJ neither omitted nor added to the original questions when it reprinted them in its
decision, hence it is highly likely that they continued this method post-1994. Suppression
is coded as an instance in which the ECJ did not answer all of the questions asked. 8
Expansion is coded as an instance in which the ECJ answered more questions than the
national court asked.9 Overall, there are four codes: “none,” “suppressed,” “expanded,”
“both suppression and expansion.” For the statistical analysis, since the category of both is
very small (N=10) it has been added to the suppression cases since these too are small
(N=40) and the expansion cases are much larger in number (N=108). This has been done to
make statistical analysis more effective.
The three independent variables – legal system, issue transparency and compliance
– are operationalized as follows. Legal system experience and issue transparency are
operationalized in the same manner as for the first stage. The third variable, compliance, is
8
An example case of suppression is, Eileen Garland v. British Rail Engineering Ltd., Case 12/81 ECR
[1982] 359 in which the ECJ failed to respond to whether an employer who provides special travel facilities
for former employees’ family members after retirement in a manner discriminatory toward former female
employees is contrary to Art. 1 of Council Directive 75/117 and Art 1 of Council 76/207. Instead, the Court
resolved the issue solely on the basis of Art. 119 EEC Treaty.
9
An example case of expansion is, Gunther Henck v. Hauptzollamt Emmerich, Case 12/71 ECR [1971] 743,
in which the ECJ first determined whether it had jurisdiction in the legal area in question before dealing with
the facts of the case.
24
defined as whether the national court will abide by the decision of the ECJ. To measure
this, the effect of a national court preliminary opinion is employed. It is argued that if a
national court takes a position, then the ECJ is more likely to suppress and less likely to
expand in an attempt to narrow its decision and thereby increase the likelihood of national
court compliance.
To test the intergovernmentalist assertion that it is Member State governments’
interests that drive the ECJ’s decision-making process, it is measured whether the ECJ’s
decisions are in agreement with the government, the national court, or the Commission.
Agreement was measured by comparing the ECJ’s answers with the position advanced by
each of the three parties in their written observations. Coding of agreement was generous
in nature in that, if the ECJ suppressed on a question which the other party answered, this
is still coded as agree. In the same manner, if the ECJ expanded on a question, but the
other party did not address the issue, this is still coded as agree.
Stage 3: Coding Compliance
Finally, compliance rates were obtained directly from the European Court of
Justice, and, in a very small number of cases, from national records or legal texts cited
within the European Court’s notes on compliance. The difficulties surrounding the
gathering of compliance rates are the same as those for compiling national court decisions.
Writing to the national courts for the follow-up decision is as impractical as requesting the
initial decision to refer, as it entails writing to every court individually, paying various fees
in the currency of that country, and relying on an unknown person to respond. There is,
consequently, only one database that contains an, in this case, incomplete set of
compliance rates based upon voluntary submission of follow-up national court decisions,
the ECJ.
Compliance rates are based upon the suivi texte contained in the Court file on the
case, as well as legal reports discussing the case. Sometimes, there was no suivi texte, but
the Court file did have a citation of a legal journal or a national court publication that
contained a description of the national court’s final decision, which was then used. Not all
national courts send the ECJ a copy of their final decision or information on the conclusion
of the case. Nevertheless, the rate is high enough to merit investigation. For equal
treatment, there were recorded follow-up decisions in 32 of the 59 cases (54.2%). For the
25
free movement of workers there were 50 recorded decisions out of 105 cases (55.6%). For
the free movement of goods there were 231 recorded decisions of 430 cases (53.7%).10
Compliance was measured according to six categories: “national court
compliance,” “parties desisted,” “law was revoked,” “case re-referred,” “evasion through
interpretation,” and “strict noncompliance.” The category, national court compliance,
encompasses those instances in which the national court implemented an ECJ decision.
The category, parties desisted, encompasses those instances in which the parties
themselves voluntarily withdrew the case following an ECJ decision, thus binding
themselves to that decision without the necessity of a national court ruling. The category,
law was revoked, encompasses those instances in which the national government or a
highest court, revoked the national law in question because the ECJ judgment revealed it to
be invalid according to EU statutes. The category, case was re-referred, encompasses those
instances in which national courts referred the same case to the ECJ following the
European Court’s decision. The category, evasion through interpretation, encompasses
those instances of “creative” interpretation, i.e. when the national court interpreted EU law
or applied the ECJ interpretation in a manner that did not reflect the legal decision of the
ECJ. Finally, the category, overt noncompliance, encompasses those instances in which the
national court did not implement the decision of the ECJ.
For this stage, the three independent variables were operationalized as follows.
Legal system experience and issue transparency remain the same as for the first two stages.
Compliance is operationalized as whether the ECJ stayed within the questions presented or
practiced issue expansion. If the ECJ practiced expansion, then compliance becomes an
issue since the European Court itself has not complied with the national court’s issues in
the case.
Results
National Court Opinions
It is argued that national courts are more likely to employ the agenda-setting
mechanism, preliminary opinions, when the legal system from which the court comes has
10
For a complete listing of all cases for which there is sui vi texte please go to www.uva.edu where the future
web site containing this data will appear shortly.
26
more experience with EU law, thereby cutting court costs in referring a case, the area of
law is subject to less EU codification offering more room for a first attempt at framing the
issues in this area, and compliance with the referring court’s decision is at issue, i.e. the
referring court is a court of first instance.
The data reveal that, overall, preliminary opinions occur in a significant minority of
the cases, 41.3%. Hence, as predicted, courts do not always send an opinion with every
preliminary reference, but they do send opinions in a sizable minority of cases. When the
influence of legal system, issue transparency, and compliance were measured, the
following results were found. Table 1 shows that indeed, when preliminary opinions are
examined in relation to repeat players versus one-timers, there is a marked difference
between the two types of courts. Repeat players (44.1%) are far more likely to send a
preliminary opinion than first time courts (30.6%). This relationship is statistically
significant (p<.007) and is weak in strength (φ=.113). Hence, it appears that the
embeddedness of the individual court within the referral system influences the likelihood
that national court will employ preliminary opinions as a means of influencing the
decisional calculus of the ECJ.
Table 1
Repeat Players and the Employment of Preliminary Opinions
National Court as a
Total
Repeat Player
Preliminary
Yes
No
Opinion
Yes
198
38
236
44.1%
30.6%
41.2%
No
Total
*χ2 =7.260, df=1, p<.007, φ=.113
251
55.9%
86
69.4%
337
58.8%
449
124
573
Issue transparency, as measured by the level of EU legal codification within an area
of law, reveals that codification has some influence upon the use of preliminary opinions.
In the area of law for which there is little treaty regulation and very late secondary
regulations (beginning in the 1980s), the equal treatment of men and women, courts are
most likely to render a preliminary opinion in a case. Nevertheless, the relationship is not
27
statistically significant, and it does not hold across areas of law. There are slightly more
preliminary opinions within the economic rights cases, free movement of goods, than in
the middle category, the free movement of workers. Hence, it is necessary to conduct
further research on other areas of law, adding such areas as agriculture, which was the
cornerstone of the original European Community, and environment, for which there are
very recent secondary regulations. In so doing, it may be possible to discern more
accurately the effect of issue transparency upon the use of agenda-setting mechanisms at
the national level.
Table 2
Effects of Issue Transparency on National Court Preliminary Opinions
Area of Law
Total
Preliminary
Opinion
Equal
Treatment
Free
Movement
of
Workers
Free
Movement of
Goods
Yes
26
44.1%
36
40.0%
175
41.2%
237
41.3%
No
33
55.9%
54
60.0%
250
58.8%
337
58.7%
59
90
425
574
TOTAL
2
*χ =0.252, df=2, p> .10
Third, the effect of compliance, as measured by court level, reveals that the lower
the court, the more cases referred (first instance: 42.8%, appeals: 33.5%, last instance:
23.7%) Therefore, it does appear that court level has an effect on the number of cases sent.
It is now necessary to determine if this variable influences the employment of preliminary
opinions.
Table 3 shows that courts of first instance are indeed the most likely to send a
preliminary opinion with a reference (48.0%) in comparison to appeals courts (28.6%) and
courts of last instance (47.1%). Yet, high courts are more likely than appeals courts to send
preliminary opinions. Hence, there may be two seemingly different factors driving the
employment of preliminary references by low and high courts. While low courts may be
interested in insulating their decisions against appeal and revision within the national legal
system, high courts may actually be interested in insulating national law against revision
outside of the national legal system by the European Court of Justice. Courts in the middle
28
arguably do not have the same incentive as courts of first instance in insulating their
rulings against an appeal to a court of final instance, since the likelihood of appeal is
arguably smaller than for courts of first instance. They also have less incentive to insulate
national law against revision by the ECJ since they still have the courts of final instance
above them to rectify any grievous errors. Consequently, the original hypothesis, while not
completely incorrect must be modified to include the incentive of courts of last instance to
insulate national law against external revision, the very factor which drives courts of first
instance to go outside of the national legal system.
Table 3
Effects of Compliance on Preliminary Opinions
Court Level
Low
Middle
High
Preliminary
Yes
118
55
64
Opinion
48.0%
28.6%
47.1%
No
128
52.0%
TOTAL
246
χ2=19.055, df=2, p<.001, φ=.182
137
71.4%
192
72
52.9%
136
Total
237
41.3%
337
58.7%
574
Finally, the last section tests whether it is court preferences or the preferences of
the Member State governments that drive national courts to act strategically within the
referral process by sending preliminary opinions with referrals. Intergovernmentalists
assert that it is Member States that drive the preliminary reference process. I argue that it is
not Member States that drive national courts to submit opinions to the ECJ, but rather, it is
the reverse. Preliminary opinions will actually suppress Member State strategic action.
Member States will be more likely to react to a case sent to the ECJ if its national court has
left it room to do so by not submitting a preliminary opinion. Furthermore, the Member
State will only send written observations when the national court has sent an opinion if the
Member State disagrees with the position advanced by the national court. Consequently,
within the initial stage of national referral, the Member State has far more opportunity to
be reactive than proactive.
Table 4
Preliminary Opinions and Member State’s Written Observations
Preliminary Opinions
Yes
No
Total
Yes
97
192
289
Member State
40.9%
57.3%
50.5%
Government’s
Written
29
Observations
No
140
59.1%
Total
335
*χ2 =14.908, df=1, p<.001, φ=-.161
143
42.7%
283
49.5%
237
572
Member States sent written observations in 50.5% of the cases referred to the ECJ
from their legal system. When the national court also sent a preliminary opinion with the
case, the government indeed sent fewer written observations (40.9%). This is a significant
relationship (χ2, p<.001), which is weak to moderate in strength (φ=-.161). When there was
no preliminary opinion, the Member State government was far more likely to send written
observations (57.3%). Consequently, it appears that the Member State government was far
more likely to react to the referral of a case only if the national court had not sent an
opinion.
Next, the agreement between the national court’s interpretation as explained in its
preliminary opinion and the Member State government’s interpretation advanced in its
written observations were compared. As predicted, when the national court sends a
preliminary opinion and the Member State sends written observations, the Member State
government is most likely to disagree with the court’s interpretation (69.6%). Hence,
governments are driven at least in part to submit observations by disagreement with and
reactions to the national court’s position.
The findings, therefore, suggest a strong case for neoinstitutionalism and the
argument that courts as institutions drive the preliminary reference process, with Member
States only reacting to courts’ actions. The national government perceives a chance of
influencing the ECJ more often if the national court has not already offered the ECJ a
frame of interpretation. National court inaction determines Member State reactions in the
referral stage.
In sum, during the first stage of the preliminary reference process, national courts
attempt to set their own agendas and pursue their own goals by sending preliminary
opinions in a significant minority of cases. They are increasingly likely to do so, the more
so the individual court is embedded within the referral process as a repeat player. Also,
opinions are highest for the area of law with the least codification, fundamental rights, but
this does not hold across the three areas of law. Hence, while there is variation among the
legal areas, it is necessary to investigate additional areas in which codification varies to
30
determine if a stronger pattern does emerge. Compliance also had the expected effect for
courts of first instance. They did send the most cases and most opinions. Yet, courts of last
instance sent almost the same number of opinions. These two levels seem to be driven in
the same direction by opposite forces. Courts of first instance attempt to influence the ECJ
to avoid internal revision, whereas courts of last instance attempt to influence the ECJ to
avoid external revision. Finally, Member State governments were indeed more likely to
send written observations only when a national court did not sent a preliminary opinion,
and if there was a preliminary opinion, then only when the government disagreed with the
national court’s position. Thus, it does appear that national courts are strategic actors
within the first stage of the referral process and that they are driven by their own interests.
They are constrained to a certain extent by their own experience with the referral process,
the level of EU codification within a legal area, and possible compliance with their rulings.
It now remains to be seen the effect such national court actions have upon the ECJ and its
strategic use of issue selection.
ECJ Issue Selection
It is argued that the ECJ should suppress more and expand less the more
experienced the legal system, the less EU codification within a legal area, and the more
national court compliance is at issue. It will do this to narrow the breadth of its ruling
thereby increasing the likelihood that the decision will be implemented. When the Court is
not reined in by these constraints, it is more likely to employ issue definition to advance its
own agenda, i.e. greater legal integration and thereby advanced ECJ jurisdiction.
The European Court of Justice employed issue definition in a marked 27.5%
(N=575) of the cases under investigation. It suppressed in 7% (N=40) of the cases,
expanded in 18.8% (N=108) of the cases, and both suppressed and expanded in 1.7%
(N=10) of the cases. Hence, the ECJ too, appears to make significant use of this strategy
within the second stage of the referral process in pursuit of its interests. The influence of
legal system, issue transparency, and compliance, as well as the influence of the
Commission’s, national court’s and Member State’s opinions upon the ECJ are discussed
below.
31
ECJ Issue
Definition
Table 5
Repeat Player Courts andECJ Issue Selection
National Court as a
Repeat Player
Yes
No
Total
Suppression
44
9.8%
6
4.8%
50
8.7%
None
325
72.4%
91
72.8%
416
72.5%
Expansion
80
17.8%
28
22.4%
108
18.8%
125
574
Total
449
*χ2 =3.899, df=2, p>.10, φ=.082
Courts as repeat players should cause the ECJ to stay within the parameters of the
questions referred because the ECJ finds itself within a repetitive dialogue with these
institutions. These courts are also arguably more aware of the room for legal maneuvering
within the area in question, and are more likely to have also submitted a preliminary
opinion than first time courts, which should also rein in strategic action on the part of the
ECJ. Table 5 reveals that when courts were repeat players, the European Court was more
likely to stay within the parameters of the questions referred, i.e. it was more likely to
suppress (9.8% vs. 4.8%) and less likely to expand (17.8% vs. 22.4%).11 Consequently,
courts do consistently influence the ECJ use of issue suppression and expansion if they are
repeat players.
Next, the effects of issue transparency are reviewed. It is argued that the less
codified an area of law, the more likely it is that the ECJ will stay within the legal
parameters of the questions referred. In other words, it will narrow the ruling as much as
possible, thereby avoiding encroaching upon areas of national law. The data reveal in
Table 6 that there is a significant (p<.01) and moderate relationship (φ=.166) between issue
transparency and ECJ issue selection. Issue selection goes from 25.4% for the equal
treatment category to 35.6% for the free movement of workers category, to 26.0% for the
free movement of goods category. As predicted, suppression is highest for the least
The relationship was not significant according to the χ2 statistic, but this is likely due to the fact that the
category of none, which contain the largest number of cases for this variable (N=416), exhibited no
fluctuation. Consequently, χ 2 and φ were run for just suppression and expansion. The results were a
significant relationship (p<.05) that is weak to moderate in strength (φ=-.158).
11
32
codified area, equal treatment (18.6%), decreasing for the free movement of workers
(10.0%), and lowest for the most codified area, the free movement of goods (7.0%).
Table 6
Issue Transparency and ECJ Issue Selection
Legal Area
ECJ Issue
Definition
Equal
Treatment
Free
Movement of
Workers
Free
Movement
of Goods
Total
11
18.6%
9
10.0%
30
7.0%
50
8.7%
None
4
74.6%
58
64.4%
315
73.9%
417
72.5%
Expansion
4
6.8%
23
25.6%
81
19.0%
108
18.8%
90
426
575
Suppression
Total
59
*χ2=15.929, df=4 , p<.01, φ=.166
Expansion is lowest for the least codified area of law, equal treatment (6.8%), as
predicted. There is not a linear increase thereafter. Expansion is higher within the middle
category, free movement of workers (25.6%) than for the most codified area of law, free
movement of goods (19.0%). This may be because as the EU has moved toward a single
market, deeper integration in the free movement of workers and professions has become
increasingly necessary and accepted, yet because this area has less EU codification than in
the free movement of goods category and passing legislation takes time, it has been up to
the Court to expand where EU legislation has not yet ventured.
Third, the influence of compliance, measured by the influence of a national court’s
opinion, was tested. It is argued that the ECJ will be more likely to suppress and less likely
to expand if a national court opinion has been sent. In so doing, the ECJ narrows the
breadth of its decision thereby increasing the chances of national court compliance. Table 7
reveals that national courts’ strategic attempts to influence the ECJ do indeed affect the
Court’s employment of issue selection. The European Court of Justice is more likely to
suppress (10.2% vs. 7.7%) and less likely to expand (15.3% vs. 21.1%) if a preliminary
opinion accompanies a case. Although the significance of this relationship is tenuous
(p<.155) and weak (φ=.081), there is nevertheless a definite pattern for which further
investigation of a greater number of cases may reveal more solid support.
33
Table 7
National Court Compliance and ECJ Issue Selection
Preliminary Opinion
ECJ Issue
Yes
No
Definition
Suppression
24
26
10.2%
7.7%
Total
50
8.7%
None
176
74.6%
239
71.1%
415
72.6%
Expansion
36
15.3%
71
21.1%
107
18.7%
236
336
572
Total
*χ2=3.724, df=2 , p<.155, φ=.081
Finally, to test intergovernmentalist claims that it is Member State preferences that
drive the decisional calculus of the ECJ, I measured agreement between the ECJ’s decision
and that of the opinions promoted by the Commission in its written observations, the
national court in its preliminary opinion, and the Member State government in its written
observations. It is argued that the ECJ is most likely to be influenced by the argumentation
of the Commission, followed by the national court and finally, the Member State
government. The Commission most consistently represents the interests of the European
Union and the legal interpretation that will advance integration, as well as the scope of ECJ
jurisdiction. Member State governments are arguably on the other end of that spectrum,
attempting to promote national law and procedure. National courts are in the middle in that
they voluntarily agree to participate in the referral process, yet they are driven by their own
interests which may be, in the case of lower courts, external revision, but in the case of
courts of last instance, thwarting external revision. The data reveal that indeed, the ECJ
agreed with the Commission across areas of law 72.4%, the national court 57.4%, and the
Member State government of the country in which the case originated 44.1% of the time.
Hence, of those actors that have the ability through written and oral observations to
influence the European Court of Justice, Member States have empirically had the least
effect upon the ECJ’s decisional calculus.12 Member States have less than a fifty percent
12
In the larger project on the referral process, it was tested whether the submission of written observations on
the part of the Member State government influenced the ECJ’s use of suppression and expansion. A
significant relationship (p<.10) weak in strength (φ=.094) was discovered. Observations on the part of the
Member State government did increase suppression (11.1% vs. 6.4%) but they also increased expansion
34
chance of the European Court of Justice’s agreeing with their position. This is not
supportive of intergovernmentalist claims to the contrary.
National Court and Litigant Compliance
This final section investigates whether and how often national courts and litigants
comply with ECJ rulings. It is argued that, overwhelmingly, national courts should
implement ECJ decisions for three reasons. First, they find themselves at the end of a legal
process which they themselves began, and it is unlikely that they would take upon
themselves the costs associated with a referral if they actually had no intention of adhering
to the final ruling. Second, if these courts are repeat players, the costs of defying an ECJ
decision are very high since they will be entering the referral process again in the future
and depend upon the ECJ’s taking the national court’s position into account when
rendering its decision. Third, by refusing to implement an ECJ decision, the national court
jeopardizes the legitimacy of that external body to which it has turned for support. This
could potentially undermine the entire referral process and its usefulness to the national
court. Hence, it is argued that defiance and even evasion should be rarities.
Table 8 reveals a number of interesting findings. First, national courts comprise
“only” 50% of instances of compliance. Rather, and secondly, an overwhelming 40.9% of
compliance is on the part of litigants practicing desistement, in which they voluntarily
agree to forego a national court decision following an ECJ ruling and agree among
themselves to implement directly the decision of the European Court. Although it was
predicted that litigants should desist more often the more likely it is that the national court
will implement an ECJ decision, it is nevertheless surprising that litigants pass on a
national court ruling so often, considering that the Member State government was a party
in 118 of 128 cases in which the litigants desisted. Thus, even the governments arguably
tacitly accept the authority of the ECJ and acknowledge what must be the overwhelming
likelihood that their own courts will dutifully apply the ruling of the ECJ in their own
judgments. Third, the table reveals that noncompliance occurred in only two cases. And
(19.9% vs. 17.7%). Further investigation of the types of expansion and suppression is necessary to determine
whether expansion comprised the Court’s addressing issues of jurisdiction, which Member States often call
into question, or of substantive policy. This will make interpretation of these findings more effective.
35
fourth, even evasion, measured as reinterpretation and re-referral, occurred in only nine
cases. Consequently, as predicted, evasion and defiance are a rarity at best.
Table 8
Compliance with ECJ Decisions
Frequency
Percent
Compliance:
National Court Compliance
Litigant Desistement
Law was Revoked
Valid Percent
157
128
4
25.0
20.3
.6
50.2
40.9
1.3
Evasion:
Reinterpretation
Re-referral
6
3
1.0
.5
1.9
1.0
Noncompliance
2
.3
.6
Other:
Remanded to Lower Court
Withdrawn
Total
3
.5
1.0
10
313
1.6
49.8
3.2
100.0
Missing:
Total
316
629
50.2
100.0
Testing was done of the three independent variables to determine their effect upon
evasion and noncompliance, but no one variable explained thoroughly instances when
courts decided not to comply with an ECJ decision. There are two interesting findings.
First, French courts made up five of the eleven instances. Second, the government sent
written observations in eight of the cases, and the ECJ disagreed with the government in
seven of those eleven cases. Hence, while these findings point toward certain patterns, they
do not predict when a national court will decide to defy an ECJ decision. Rather, such
moves appear to be very case specific and therefore difficult to predict.
The effect of the independent variables upon litigant desistement did elicit some
very clear patterns. Courts as repeat players had the anticipated effect upon litigant
desistement. When court were repeat players, litigants were far more likely to desist
(45.4%) than when they were first timers (31.6%). This is a statistically significant
relationship (p<.06, χ2= 3.603, df=1), which is moderately weak in strength (φ=.110,
p<.06). ECJ issue selection resulted in some unexpected patterns. Parties were most likely
to desist if the ECJ practiced issue suppression (56.6%), followed by issue expansion
36
(44.4%), and finally instances when the Court answered all of the questions asked (41.1%).
The relationship was not statistically significant. It would be necessary to investigate the
instances of issue expansion to determine whether this pattern is as unexpected as it
appears. It may be that litigants desisted more often in expansion cases in which the ECJ
simply addressed issues of jurisdiction, i.e. procedural questions, rather than substantive
issues related to the case. Finally, table 9 reveals that issue transparency does have a
marked effect upon instances and types of issue compliance. National court compliance is
highest for the least codified area of law, equal treatment (87.5%), but it decreases
consistently across the three legal areas and is replaced by litigant voluntary compliance
(50.0%) for the most codified area of law, free movement of goods. This is a statistically
significant relationship (p<.001) moderate in strength (φ=.333). It therefore appears that
the level of EU codification, which seems to relate directly to the number of referrals in an
area, also affects litigants’ decisions to forego further national court adjudication.
Table 9
Effects of Issue Area upon Types of Compliance
Legal Area
Free
Equal
Free
Movement of
Treatment Movement
Goods
Total
of Workers
National Court
Compliance
28
87.5%
28
56.0%
101
46.3%
157
52.3%
Litigant
Desistement
3
9.4%
16
32.0%
109
50.0%
128
42.7%
Law Revoked
1
2.0%
3
1.4%
4
1.3%
Evasion
4
8.0%
5
2.3%
9
3.0%
Noncompliance
1
3.1%
32
100.0%
*χ2=33.358, df=8, p<.001, φ=.333
Total
1
2.0%
50
100.05
2
0.7%
218
100.05
300
100.0%
This finding indicates that the level of legitimacy enjoyed by the ECJ may be the
result of a series of events that begins with EU legal codification. The more legal
codification within an area, the greater the number of referrals and the more certain the
37
ECJ is in its legal footing. In turn, it is less likely that the national courts will evade
decisions in such areas. This results in a wider acceptance of the ECJ’s decisions by
litigants, who are both citizens and Member State governments, since they realize that it is
actually less costly to accept the ECJ decision immediately rather than await a national
court ruling that duplicates that of the ECJ’s. Once litigants voluntarily accept the legal
decisions of the ECJ, whether they agree or disagree with them, diffuse support for the
Court increases, as does its legitimacy (Gibson & Caldeira 1995). Consequently, the ECJ’s
legitimacy, essential to the effectiveness of the Court, may be a commodity that it acquires
as EU codification increasingly permeates all areas of law.
Conclusion
This project sought to determine whether and when courts maneuver strategically
within the EU preliminary reference process. The data indicate that they indeed do, and
that their attempts to influence one another’s behavior often produce the desired results.
Courts also seem to be driven not by the preferences of the Member States but rather their
own preferences, i.e. increased power within their judicial systems, to act strategically. The
final issue left for discussion is the effect this may have upon integration. It is posited here
that strategic maneuvering within the three stages of the preliminary reference process has
allowed both national courts and the ECJ the ability to voice their interests and opposition
without leaving the referral system, and thereby also sometimes avoid potentially volatile
issues while nevertheless resolving the pertinent legal issues in the case. In so doing, these
opportunities for maneuvering have made the preliminary reference process a viable option
for national courts in their quest for increased national autonomy, allowing them to
participate actively in the ECJ decision, perhaps even shaping that ruling to reflect the
national court’s interpretation, rather than awaiting it. For the ECJ, the ability to redefine
issues has enabled it more efficiently and effectively to expand EU law into the inner
depths of national law, while at the same time retaining national courts’ participation in the
EU legal process and also attracting new ones to the procedure. In so doing, the European
Court of Justice has embedded itself within a host of institutions in various nations, all of
which enjoy a certain level of legitimacy in their own legal settings. This occurrence has,
in turn, changed national judges’ “prospective bets about the collective environment and
38
collective activity” (Jepperson 1991, 147), altering their norms and perceptions of law to
include a transnational dimension.
At the same time, while courts themselves have developed a vested interest in the
employment and expansion of the EU judicial process, veteran and newcomer courts have
been led back to the EU legal realm repeatedly by other external actors, litigants. As
litigants have become aware of this acceptable, external legal pathway, they have
increasingly incorporated EU law within their legal argumentation in national cases. As
litigants have increasingly turned toward EU law within national cases, they themselves
have been faced with the choice of voluntary compliance with ECJ decisions, which cuts
their costs in national litigation. And, as litigants have increasingly accepted and
implemented the decisions of the ECJ voluntarily, diffuse support of the European Court
has grown, and with that, the legitimacy of EU law and the ECJ. And, at the same time, the
process has fostered and developed its own guardians, litigants and national courts.
Finally, by helping to lay the groundwork for integration at the institutional level
and by advancing integration into what were profoundly national legal areas, courts have
also aided in changing the individual’s “image” of a united Europe. Although it is not yet
possible to talk of “nationalism” in relation to the European Union, there are parallels
between the evolution of the EU and of a nation. In the words of Ernest Gellner:
“Nationalism is not the awakening of nations to self-consciousness: it invents nations
where they do not exist” (Gellner 1964, 169). Anderson refers to this development as the
creation of “imagined communities.” For him, a nation is “imagined because the members
of even the smallest nation will never know most of their fellow-members, meet them, or
even hear of them, yet in the minds of each lives the image of their communion”
(Anderson 1991, 6). Strategic use of the EU judicial process by both litigants and courts
have aided in changing the image of the EU for Europeans. For instance, court decisions at
a national level implementing an ECJ ruling that finds that university degrees in one nation
must be accepted in another13 break down the high walls of individuality and seeming
uniqueness among nations within the realm of education. Furthermore, decisions at a
national level implementing an ECJ ruling that find that legal production in one Member
13
Dieter Kraus v. Land Baden Württemberg, Case 19/92 ECR [1993] 1663.
39
State must be accepted as legal production in another14 further erode the high walls of
individuality concerning products. This legal development arguably works incrementally
to erase “other” and “we vs. them” within European perception. The preliminary reference
process and the resulting legal integration have become irreplaceable parts in this process
by embedding courts, and then nations, and thereby, ever so slowly, individuals into a
“European community” that began as imagined and has become increasingly real.
14
Procureur du Roi v. Benoit and Gustave Dassonville, Case 8/74 ECR [1974] 837. See also Procureur de la
République at the Cour d’appel Aix-en-Provence and Fédération nationale des productuers de vins de table
et vins de pays v. Paul Louis LaLaille and Others, Cases 10-14 ECR [1975] 1053.
40
Appendix
Figure 1
Model of the Three Stages of the Referral Process and Possible Strategic Maneuvering
Does not refer
Nat’l Court Complies
ECJ alters legal parameters
(likely)
(likely)
Nat’l Court Evades
National Court
(seldom)
No Preliminary opinion
litigants
desist
(likely)
Refers
ECJ does not alter
Nat’l Court Complies
legal parameters
(likely)
Preliminary opinion
ECJ stays within defined
Nat’l Court Complies
parameters
(likely)
(likely)
(likely)
litigants
desist
(somewhat
likely)
Nat’l Court Complies
(likely)
ECJ does not stay within
defined parameters
Nat’l Court Evades
(somewhat likely)
Stage 1:National Court Decision to Refer
Stage 2: ECJ Treatment
Stage
Implementation
Of the Referral
ECJ Decisions
3:
of
41
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