National courts as regulatory agencies and the application of EU law

ABSTRACT

The European legal order gives an important role to national judges. They are expected to observe EU law rules and apply them to the domestic legal disputes where appropriate. For a long time, the academic literature on the application of European law in the courts of the member states had a normative and doctrinal focus. It described what European law and the Court of Justice of the EU expects from national judges. Data from different studies, however, shows some variation in how judges see this role. Based on these findings, this article introduces four types of rule application, which are constructed along the lines of more or less use of EU law. These types are meant not only to bring order to the data collected but to inspire further research on the influence of the organization of courts and court systems on decision-making patterns. 

KEYWORDS:

• Europeanization
• rule application
• typology
• national judiciary
• EU law application
• regulatory agencies

Introduction

One version of studies of Europeanization tries to understand the influence of the EU on the societies of its member states (see, e.g. Olson 2002; Graziano and Vink 2007; Ladrech 2010 for an overview of Europeanization studies). This version investigates how ideas, values, formal and informal practices developed at EU level are being reproduced at a national level. Arguably, European law plays a prominent role when it comes to Europeanization; it is a vehicle for spreading common practices throughout Europe. National courts are, among other national regulatory agencies, responsible for applying EU law to the specific circumstances of a certain case. In fact, EU law itself has given national judges the role of decentralized Union judges. To better fulfill this role, EU law supplied them with a number of tools, like the preliminary ruling procedure or the principle of effectiveness of EU law. It is, however, unclear how far national judges can and/or are willing to act as decentralized Union judges. With the help of surveys and face-to-face interviews, a research group has collected data from the Netherlands and North Rhine-Westphalia on how judges deal with these expectations (Nowak et al. 2011). Data from Poland and Spain based on the same survey questions are also available (Jaremba 2012; Mayoral 2013), with the latest research covering Croatia and Slovenia (Glavina 2019). The data give us a better picture of the problems national judges encounter with EU law and factors that influence the application of EU law at the national level. How do judges evaluate their role as Union judges? Are they willing to fulfill this role as envisaged by EU law and why (or why not)? Can we identify different patterns of decision-making using the qualitative data collected? What are these patterns? How can a typology of patterns of rule application inspire further research?

A typology of modes of rule application based on Kagan’s view on regulatory agencies will bring a little order to the qualitative findings and might open new perspectives for future research (Kagan 1978, 90–96). The typology, based mainly on interviews with judges, can also be applied to other national regulatory agencies. It is constructed along the dimensions of European and national rule application. In addition, while most studies focus on factors that advance Europeanization, this article pays equal attention to the obstacles to Europeanization that derive from the attitudes of national judges. Before taking a closer look at the qualitative findings from the Croatian, Dutch, North Rhine-Westphalian, Polish and Slovenian studies and before constructing a typology of EU rule application based on these findings, the role allocated to national judges by EU law and Kagan’s typology will be introduced.

High expectations

The role given to national judges in the legal system of the EU is a demanding one. They have the important task of the implementation and application of EU law. The general obligation of sincere cooperation found in the Treaty (TEU 2016, 4 (3) applies to all national authorities, including courts.¹ This is the duty to take appropriate measures to fulfill the obligations found in the Treaties and secondary law, to facilitate the achievement of the Union’s tasks and not to jeopardize the objectives of the EU (TEU 2016, 4(3)). In addition, the principle of supremacy places EU law above national law, expecting from national judges to always observe the rules of EU law.² A number of additional principles specify these expectations. Direct applicability of certain European legal acts (mainly Regulations) and direct effect of EU law give rights to individuals to invoke a provision of EU law directly before their national court. Whether a provision has direct effect or not is determined by the legal instrument, the relationship involved (private party vis-à-vis private party or vis-à-vis a member state) and the content of the provision. In practice, it is the Court of Justice of the EU (CJEU), which decides in the end about the direct effect of a measure based on the contents and the kind of measure involved. Moreover, national judges are obliged to interpret and apply national law in harmony with EU law irrespective of the legal instrument and the relationship involved.³ National judges can expect little guidance from the CJEU in matters of harmonious interpretation as it concerns the interpretation of national law, something that the CJEU does not do. Judges also have to adhere to the principles of equivalence (national rules that treat EU law less favorably than national law cannot be applied), effective application (national rules that making the application of EU law excessively difficult or impossible cannot be applied) and effective judicial protection (national rules obstructing access to courts cannot be applied).⁴ They have to apply EU law ex officio in cases in which they have to apply national law ex officio and in cases where it is possible but not compulsory to apply national law ex officio.⁵ Even in cases in which national law forbids the ex officio application, judges have to apply EU ex officio if the EU rule is protecting the public interest. Thus, national judges not only have to determine whether or not an EU rule has to be applied ex officio, but they also might have to adapt the legal proceedings by taking a much more active part than they would have under national law. EU law, like national law, assumes that the court knows the law. In practice, this is of course rather difficult and made impossible in the EU, not only by the sheer amount of regulation, but also by the fact that all language versions of an EU measure are equally authentic and all of them have to be used theoretically for a thorough interpretation (see, Bobek 2008 2–5 for a discussion on this issue; however, it should be noted that this is not the case for judgments of the CJEU, as the authentic version of the judgment is governed by the language of a given procedure).⁶ At the moment, there are 24 EU official languages. If the national judge can still not figure out what to do, the judge can ask the ECJ for an interpretation of primary or secondary EU law (TFEU 2016, 267). In brief, a judge first has to know if EU law applies to a case, then find the applicable EU law rule, interpret that rule according to European principles, determine if EU rules have to be given direct effect or a harmonious interpretation of national law suffices, decide about the ex officio application of EU law and on how national law should be applied in the light of the EU requirements of equivalence and effectiveness, and decide whether or not to ask the ECJ for a preliminary ruling. The main bulk of academic literature looks at these expectations from a theoretical and/or normative point of view, but not from a practical one. Some political scientists and legal scholars alike have tried to explain the role national courts play in the application of EU law (Alter 1998; Alter and Meunier-Aitsahalia. 1994; Burley and Mattli 1993; Conant 2002; Micklitz 2005; Slaughter, Sweet, and Weiler 1998; Stone Sweet 2000; Weiler 1994; Wind, Martinsen, and Rotger 2009). The most prominent explanation of authors that see the cooperation between lower national courts and the CJEU as crucial for the successful application of EU law can be summarized as follows. Because the application of EU law and participating in the preliminary ruling procedure allow lower courts to circumvent national rules they do not support, lower courts gain discretion and are thus empowered vis-à-vis national higher courts and national legislators by means of the application of EU law (Burley and Mattli 1993, 62–65; Alter 1998; Mattli and Slaughter 1998). Qualitative (and quantitative) empirical studies on how national judges see their role are, by contrast, rather scarce (see, European Parliament 2008 report for an exception to this). The data from Germany, the Netherlands, Poland, Spain, Slovenia and Croatia show that judges are rather skeptical about their level of knowledge of EU law but that the of extent of their skepticism depends on their position in the legal system (field of law and level of court) (Mayoral, Jaremba, and Nowak 2014; Glavina 2019).

Kagan’s modes of rule application

Starting from the assumption that the law in the books is different from the law in action, the high expectations that the EU has from national judges gave rise to a number of research projects investigating how national judges see their role as decentralized EU judges, how they experience the application of EU law, how they acquire their knowledge of EU law and what opinions they hold about their role as decentralized EU judges (Nowak et al. 2011; Jaremba 2012; Mayoral 2013; Glavina 2019). These research projects are essentially studies of the legal consciousness of judges. Trubek (1984, 592) describes legal consciousness as ‘all the ideas about the nature, function and operation of law held by anyone in society at a given time.’ In contrast to most legal consciousness studies, which do not focus on legal professionals, these projects explore the legal consciousness of national judges. The data gathered by these research projects have been analyzed and published in a number of books and articles (Jaremba and Nowak 2012; Nowak et al. 2011; Jaremba 2012; Mayoral 2013; Mayoral, Jaremba, and Nowak 2014; Hertogh 2015; Glavina 2019). This paper uses the findings of these projects to construct types of decision-making modes applied by national judges concerning EU law, taking a more abstract view than earlier publications, which were more descriptive in nature. The typology constructed by Kagan (1978) in his study on rule application by regulatory agencies – a typology that is in itself based on studies of judicial behavior – inspired these types.

Kagan studies how bureaucrats apply legal rules. Relying heavily on Merton’s (1957) typology of modes of adaptation, Kagan (1978) constructs four modes or patterns of rule application or decisional cultures along two dimensions, an emphasis on adherence to rules and an emphasis on the realization of organizational ends. First, according to Kagan the prevailing mode of rule application in American regulatory agencies, a term used to describe specialized government bodies that attach consequences to rules (Cogliagese and Kagan 2007, ix), is the judicial mode. This type is based on studies on judicial decision-making, which describe a systematic rule application according to legal methods of interpretation based on norms and institutionalized practices. In this mode, the purpose of the applied rule and the consequences of applying the rule are central aspects. Second, legalism is the mechanical application of rules without considering the purpose of a rule. In this mode, there is no room for discretion. Non-application and innovative interpretation of the rules are not an option. Third, in the mode of un-authorized discretion officials do not apply existing rules or apply them selectively in order to legitimize their decisions. The official or a group of officials give their own interpretation to the purpose of their organization and ignore norms that they think would impede this purpose. Fourth, the mode of retreatism refers to officials trying to avoid taking decisions, they do not apply the rules nor do they try to realize the goals of their organization. The manipulating rules for personal gain would also fall under retreatism. This mode also includes encouraging informal private settlement of cases, something Kagan calls respectable retreatism, and procrastination of court decisions. Kagan speaks of a grey area between retreatism and the judicial mode in which sometimes judicial restraint is seen as the appropriate course of action.

Kagan assumes that organizations encourage certain modes of rule application and discourage others. The consequences (praise or reprimand) that a certain mode might trigger are an indication of which mode is encouraged and which one is not. By identifying the predominant modes of decision-making, the causes for this predominance can be investigated. Identifying predominant modes, however, is not that easy as the border between them is often fuzzy (as we saw in the example of the private settlement of cases). Nevertheless, Kagan analysis of decisional cultures in regulatory agencies does not only provide a heuristic tool but encourages us to explain the use of certain patterns. Although Kagan did not construct his typology specifically for courts but rather for American regulatory agencies in general, it was informed extensively by studies of judicial decision-making (Kagan 1978 refers throughout the book to studies on judicial decision-making, e.g. to works of Cordozo, Dworkin, Fuller and Shapiro).

The use of the typology

In general, a typology helps to give structure to empirical (and theoretical) comparison, to map empirical and theoretical change and can be employed for quantitative analysis (Collier, LaPorte, and Seawright 2008, 162–166). It simplifies reality (Watkins 1952, 23). The main underlying question of the whole endeavor of constructing this typology, besides identifying different modes of rule application, is why actors choose a certain pattern of decision-making above another. How could a descriptive multidimensional typology specific to EU rule application look? The overarching concept is not as in Kagan’s typology, rule application in general, but EU law rule application. The dimensions of the typology are the application of EU law (column variable) and the application of national law (row variable). The types are then different kinds of rule application. The result is a partially ordered typology with a three-category ordinal scale and a fourth one not fitting into the hierarchy of more or less EU/national law application. The types, constructed with the help of judges’ statements on how they see the role of EU law in their daily work, will not only bring structure to the data collected but hopefully stimulate research on why a certain type of EU rule application and not another might be dominant in an organization. The typology can thus be applied to different regulatory agencies and with its help, organizational characteristics that work in favor or against a certain pattern of decision-making can be identified. An important element of the construction of any typology is a discussion of how these types could be operationalized for future research (McKinney 1969, 7–8). What specific criteria makes behavior fall under a certain type? How can one type be identified as dominant? While the main objective of this paper is the construction and description of the types, questions posed above will be addressed in the conclusion.

European law in action

How can we make use of Kagan’s types in our study on the application of EU law in national courts? As the study of the application of EU law by national judges calls for an EU law specific typology, Kagan’s typology can only be taken as an inspiration. There is evidence that suggests the existence of different modes of rule application concerning EU law across different legal areas and between higher and lower courts (see, Mayoral, Jaremba, and Nowak 2014 for the relation between the position of a judge in the court system and his level of knowledge of EU law; also see; Nowak et al. 2011, 89–140 as in the narrative interviews with German and Dutch judges, different approaches of higher and lower court judges became apparent). When it comes to the application of EU law, courts and judges can move between two dimensions: an emphasis on EU law and an emphasis on national law (see, e.g. Avbelj and Komárek 2012; Van Rossem 2014 how this also reflects the division in the discussion on sovereignty of the member states). From these two dimensions, four types can be constructed (Graph 1). A pattern of decision-making, called judicial balancing, which considers both EU law and national law, one that places national rules at the center of decision-making, called judicial nationalism, and one in which European rules prevail, called judicial Europeanism. The fourth mode, judicial retreatism, refers to a decision not to apply any legal rule system at all and to avoid taking legal decisions. The types will be fleshed out with the professional attitude of first and second instance judges from Croatia, North Rhine-Westphalia, Poland, Slovenia and the Netherlands concerning their role as decentralized EU judges expressed in surveys and in-depth interviews. The statements used below are from Nowak et al. (2011) and Glavina (2019). For Nowak et al. (2011) 262 Dutch and German judges working at civil law courts filled in a survey, 28 judges were covered with in-depth interviews.⁷ Glavina’s (2019) study includes survey responses from 290 Croatian and 126 Slovenian judges and 32 in-depth interviews. In addition, reference to Jaremba’s (2012) findings on Polish judges will be made when needed. The typology beneath will be illustrated with material taken from these interviews but also with the reactions to a number of vignettes that were part of the survey. These are short stories where judges were asked what would they do in the described situation. We rely on the thematic content analysis, the most common kind of analysis in qualitative research, to construct the types. The underlying assumption behind our analysis was that these professional attitudes partly reflect the decision-making culture of the judiciary when it comes to the application of EU law. In order to make the results as representative as possible, the analysis includes statements from two founding and three new, Central/Eastern European member states. Because no differences have been found across the studied countries, this paper suggests that the typology is equally applicable to courts in the remaining 23 member states.

Graph 1. A typology of EU rule application

Type I: judicial balancing or ‘I accept some decisions of the ECJ’

Judicial balancing is the mode of decision-making that lacks a clear-cut preference for either applying EU law or national law. Which law is used depends on the circumstances of the case and falls within judges’ discretion. The expectations of the parties seem to play a role: ‘[it] depends on if parties would be surprised by this [application of EU law]’ and ‘if lawyers would insist on [EU law application], then [judges] will put effort in it.’ These kinds of explanations often acknowledge the expectations posed by EU law but stress that there are other factors, which have to be taken into consideration: ‘some rules have to be applied ex officio. However, I think that the wishes of the parties have to be taken into consideration as far as possible’ and ‘I always investigate legal arguments presented to me.’ The role of the parties was confirmed by Polish judges (Jaremba 2012, 217): ‘So indeed, it is the role of the judge to know when and apply the law but from a practical point of view very much depends on the parties and whether they show that EU law might be applicable.’

Another set of arguments stressed the independence of the judge ‘I do have my own responsibility and cannot blindly follow others’ or ‘I find it difficult to take decisions I don’t support.’ Again, these responses often referred to the obligations of EU law only to restrict its scope: ‘the interpretation of the ECJ is important but I think that the national judge is still able to and sometimes has to decide autonomously’, ‘I would come up with a trick with which the result that I desire can be reached’ and ‘if the highest court would adopt the position with which I would not agree, I could think that the EU court would help me. You can bypass the higher instance with making a referral to Luxembourg, get the answer, which is compliant with your interpretation. […] I think this is a trick.’

An additional approach to the issue is emphasising restrictions on the application of national law: ‘I apply national law as long as it does not obviously collide with European law.’ The reference to the independence of the judge is also inherent in arguments brought forward addressing the quality of EU law. These arguments assume that the application of EU law depends ‘on the judgment of the ECJ and how it is substantiated’ and ‘on whether and in how far the European interpretation fits my own interpretation of the legal norm in the light of the existing legal culture here.’ Another example of judicial balancing is the memo issued by the presidents of the civil courts in the Netherlands about the ex officio application of EU law in consumer cases. It gives guidance to national judges and can be seen as an attempt by the judiciary to balance European expectations and national practice (LOVCK Working Group 2014).

Thus, the mode of decision-making called judicial balancing tries either to combine a national law approach with an EU law approach or refers to a pattern in which no clear cut preference for either law is present. The arguments judges give for following this pattern, are the expectations of the parties, their independence as judges (deciding on a case-by-case basis), and the quality of the law. The fact that judges consider the expectations of the parties to be important might apply more to private law cases than, for example, administrative law cases. In some legal systems, like the Dutch, the private law judges are rather passive and the input of the parties drive the process. This means that lawyers have a substantial influence on the application of EU law. Thus, the procedural rules will influence the way judges see their role when applying EU law. The argument of judicial independence, the other major argument for balancing European and national law, paints a more active picture of judges in which he or she takes a conscious decision about which set of rules to apply, influenced, for example, by the quality of the laws in question. In contrast to these individual strategies for balancing, the Dutch memo on the ex officio application is a semi-official attempt to balance European and national practices and an example of how systemic features, such as these guidelines, influence decision-making of judges.

Type II: judicial nationalism or ‘When in doubt I would choose the national law’

Judicial nationalism describes a decision-making mode that prioritises national law over EU law and, in some cases, tries to avoid the application of EU law. The reasons for prioritising national law over EU law can be practical ones, such as the time and effort it takes to search for European law or to pose a preliminary question. Judges often cite ‘heavy workload’ or ‘time constraints’ as reasons for not applying EU law or turning to the CJEU. Thus, the logic behind not using EU law in one’s cases or not asking for a preliminary ruling is not based on anti-EU law sentiment but on what this would mean for a judge’s workload or the length of the trial.

It has been argued that because a ‘judge at the first instance is so burdened that simply it is hard to imagine that I would take one month time only to work on [the preliminary reference].’ Others suggested that in some cases, such as ‘in bankruptcy, interruption is not a good idea’ because turning to the CJEU ‘prolongs the procedure’ and causes ‘time delay’ in delivering a judgment. Some judges explicitly referred to their position in the court system, hinting at, that in an appeal, higher courts will take care of it: ‘asking a preliminary question takes time and I prefer to end cases quickly. Thus, I prefer to make the choice about the application of rules myself and leave it to the parties to appeal.’ Likewise, ‘the purpose of the first instance is to quickly process cases’ and ‘I would rather step aside and let this to be dealt with by the Supreme Court.’ Similar arguments were used by a Polish judge: ‘I must admit we simply have no time to engage with EU and I even know judges who knew there might be incompliance between national and EU law but decided not to touch upon that because it would cost them a few days of extra work.’ (Jaremba 2012, 214–215). Judges believe that ‘if you would turn to the CJEU, this would take months, if not years’, and ‘people are angry if the waiting period is too long.’ Referrals are not made to the CJEU ‘because we think that we can solve the case faster without it. The question is whether the parties even agree, because it prolongs the procedure for few years.’

Prioritising national law can also be based on personal attitudes of national judges. Some interview participants expressed an open defiance to EU law arguing that there is not ‘much will in Croatia to apply EU law,’ which still feels quite ‘as a foreign body.’ Furthermore, ‘there are some who call European law “cosmic law.” Let’s get back to our earth law!’. In some cases, the authority of the ECJ as such is questioned: ‘only the constitutional court can declare a national norm void,’ ‘the decisions of the ECJ – like judgments of other courts with the exception of some decisions of the constitutional court – are not binding for me’ and ‘as an independent judge I am not bound by decisions of higher courts, not German higher courts and also not European higher courts.’ Jaremba (2012, 196) reports similar results. Polish judges argue that the ‘[Polish] constitution takes primacy. It is my own feeling yet confirmed by the Constitutional Tribunal’ and ‘the ECJ has an exclusive competence to interpret EU law and EU law takes precedence over national law, but not [over] the national constitution.’ Moreover, personal resentments against the ECJ can be found: ‘I have grave reservations concerning the ECJ’ and ‘unfortunately, the ECJ is foremost a political institution, to a lesser degree a court and the quality of its decisions would be in some member states reason to complain.’ One Polish judge expressed the same resentment: ‘I dislike this manner of adjudicating where they create legal rules and principles in situations where there is no legal basis for it. The ECJ makes law and that is alien to my way of perceiving the role law plays in general. A court applies the law, it mustn’t make the law.’ (Jaremba 2012, 209).

Preference for national law can further be explained by looking at the role of a judge as a national and EU judge at the same time: ‘the Dutch judge is not allowed to decide contrary to Dutch legislation. In cases of conflict the national legislation has to be applied’; ‘I am foremost bound by the law of my country and this is where legal certainty has to be created as well’ and ‘when in doubt I would choose the national law.’

The importance of national law can also be seen in the following statement concerning the ex officio application: ‘We do not feel morally bound to apply ex officio. The judge does not know that EU law plays a role, if he knows he might not apply it because it becomes too complicated. A European rule that contradicts a Dutch rule, we are not that inclined to apply.’ Some judges considered national law to be closer to the citizens and therefore to be the better law: ‘I think that when in doubt the rules found in German law mirror the needs and values of the citizens and for me, German law counts.’

From other responses, it becomes clear that some judges consider it is for the national legislator to adjust the national law before rules are applied: ‘the legislator has to replace the national law. This was the basis for the relationship between parties.’ This does not necessarily mean that judges who used this reasoning were unaware of the obligations EU law bestows upon them: ‘maybe it should be [applied] but I indeed do not feel responsible for this application.’

To sum up, the pattern of judicial nationalism can be based on practical considerations (heavy workload and time constraints, a judge’s position in the court hierarchy) or on an outspoken preference for national legislation (national law and national legislator considered to be more relevant, authority of the CJEU questioned). The idea that applying EU law is a time-consuming exercise in connection with the organizational goal of solving a high number of cases makes judges reluctant to apply EU law. It remains to be tested if the more personal, less structural, line of reasoning that expresses negative opinions of EU law is connected to the level of knowledge of EU law. Judges from member states with (strong) constitutional courts seem to stress the limits of supremacy. In addition, some literature on country-level divergence in referral rates suggest that judges from some member states are more reluctant to ask for a preliminary ruling than judges from other member states and that a low rate of preliminary questions could be an indicator for judicial nationalism (see, e.g. Golub 1996 on the UK; or Wind 2010 on Denmark and Sweden).

Type III: judicial Europeanism or ‘Every national judge is a European judge’

Judicial Europeanism is a decision-making mode that tries to live up to the expectations listed in section two. In this mode, EU law is considered supreme, it is applied ex officio and in cases of conflict between EU and national law, considerable efforts are made to determine whether a European rule is directly effective, principles of effectiveness and equivalence are safeguarded, and a request for a preliminary ruling is an accepted part of the procedure in cases when the interpretation of EU law is not clear. Many judges have described their view of EU law in terms of what the EU expects of them. Judges often use legal arguments found in textbooks on EU law in support of their response. EU law is described as a part of a legal system that goes beyond the national legal order and of which the national legal order is part. Judges, for example, refer to the hierarchy of norms in which EU law is supreme: ‘I know and accept supremacy of EU law.’ Judges also accept EU law as ‘part of our Croatian legislative framework,’ ‘part of our system – not to do it [applying EU law] means undermining the (international) legal order.’ The argument of the legal order is recurring throughout the interviews: ‘otherwise it will become a mess of opinions from different judges.’ The idea that EU law is supreme (at least compared to ordinary national law), but at the same time an accepted part of the legal system national judges operate in can be illustrated by an argument of a German judge who placed EU law on the same level as national constitutional law: ‘I do not apply norms that are in conflict with EU law as I do not apply norms that are in conflict with the constitution.’ What happens if EU law and national constitutional law are in conflict? At least for German judges Judicial Europeanism seems to have its limits when it comes to the German Constitution: ‘Germany is obliged to interpret and apply its laws in a Community friendly way. Something else would only apply if I think the interpretation of the ECJ is a violation of the constitution’ or ‘European law is supreme except when it comes to the constitution.’

Other judges referred to the legal obligation to apply EU law without explicitly referring to the hierarchy of norms. They describe the application of EU law as ‘legally correct’ and EU law as ‘part of the law I have to apply.’ They accept EU law as normal part of the law and the legal system: ‘I am obviously bound by law – also European law’ or‘we are all professionals who know what our obligations under EU treaties are and that we need to respect that.’ Some judges express their acceptance of EU law quite explicitly: ‘I feel responsible for the application of European law’ and ‘European law is national law.’ Several Polish judges expressed a similar stand: ‘[EU law] is something that we should not question or discuss’ and ‘I do not see as good or bad, it is the law and that’s it, I have to apply it’ (Jaremba 2012, 201).

Another element from the list of expectations national judges are confronted with is the ex officio application of EU law. In a recent ruling, the ECJ confirmed yet again that national judges are obliged to apply EU law ex officio.⁸ Especially in legal systems in which judges are traditionally passive, this principle can cause some confusion. Judges support this principle in the following words: ‘if I have to apply ex officio I will do it even if parties see it differently’ or ‘European law must be applied ex officio.’ A Croatian judge similarly states that ‘if the court determined that a provision should be applied ex officio, then I must apply it. It is not a party who invokes the application of EU law, but it is the court who needs to know whether EU law should be applied or not. […] I passionately believe in the principle of iura novit curia.’ Polish judges too invoked the duty to apply EU law rules ex officio: ‘a judge should, in principle, apply the binding law ex officio’ and 'it does not matter whether the parties refer to EU law because I have to apply it ex officio' (Jaremba 2012, 250).

The pattern of judicial Europeanism, thus, follows the EU law textbook approach to European law; the application of EU law when appropriate is considered the legally correct approach. The doctrines of EU law, such as supremacy and direct effect, are adopted and the role of the national judges as decentralized EU judges is accepted. Arguments supporting this pattern show, on the one hand, a degree of internalization when judges describe the application of EU law as the most common thing in the world. On the other hand, judges emphasize the importance of the functioning of the legal order, which includes a European component, and assume that non-application of EU law would create legal uncertainty. It is noteworthy that even some judges who argue according to the EU textbook approach, point to the limits of supremacy of EU law when it comes to their national constitution. This gives national constitutional courts an enormous influence on the application of EU law and can impose limits on judicial Europeanism.

Type IV: judicial retreatism or ‘solving the dispute is the most important thing’

The pattern of judicial retreatism includes a shameful version and a respectable one. The shameful version concerns extreme cases of judicial retreatism, like not showing up for work or postponing cases for non-legal reasons. The shameful version of judicial retreatism is usually subject to all kinds of disciplinary measures created by the organization and thus highly discouraged. While the data from the interviews with Dutch and German judges did not contain any cases of shameful retreatism, several respondents from Slovenia and Croatia hinted at its existence. Judges explained this phenomenon in the following words: ‘a judge who has his paths beaten and has been applying national law for years now gets this European law. He is tired even from national law’ and that ‘there is a forest of regulations, and now there comes this new European law. The [judges] had enough of it.’ Judges further admit: ‘I will not deal with it, I have done enough already’ and ‘to be honest, I do not even feel like [applying EU law]. That is the way things are. Such is the atmosphere.’

The respectable version emphasizes dispute resolution over rule application. It entails the idea that parties should either settle their dispute outside the court or settle their dispute in the court as efficient as possible. A judge urging the parties to come to an agreement without the help of the court would fall under this type. And indeed a number of judges stress that their task is to solve a dispute and not necessarily to apply this or that rule system: ‘solving the dispute is the most important thing’ One of the interviewees described a case in which he threatened the parties with a preliminary reference in order to get a settlement outside of court, assuming (according to his story, correctly) that they do not want to go through this lengthy procedure, and in this way avoided to take a legal decision at all. In some legal systems and legal fields, conciliation between parties outside of court is encouraged by the organization and judicial retreatism, thus, is an acceptable form of solving disputes. This type of decision-making further includes solving a dispute as fast and as efficient as possible without using (the correct) legal means. With the words of a judge: ‘Because as I said, if the case is resolved, it is closed.’

Judicial retreatism is arguably the mode hardest to identify using interviews and surveys. Especially judges practicing shameful retreatism will not be that inclined to share their approach. Retreatism from EU law (the judicial nationalism mode) seems to be widespread, judicial retreatism, in general, much less so.

Conclusion

This paper transferred Kegan’s typology on rule application by regulatory agencies to the area of EU law application by national judiciaries. It introduced four types of rule application, which were constructed along the lines of more or less use of EU law. From the qualitative data, a number of patterns on how judges evaluate their role as Union judges emerged. The types represent these patterns. How judges evaluate their role arguably influences how willing they are to apply EU law. Thus, the different attitudes we see reflected in the statements of judges stand for different decision-making patterns. We find similar arguments in the five countries included in this research, which suggests that the typology is equally applicable to courts in the remaining 23 member states.

However, the explanations provided by the judges are often very legal in nature and fall short of explaining why a certain pattern might prevail in one setting and not another. Nevertheless, the analysis of the interviews and statements highlighted some structural elements that influence the decision-making mode, workload being one of them. And as reported by Glavina (2019), heavily burdened national judges or those lacking sufficient access to court resources are those who will generally prioritize national law over EU law. More research is, nonetheless, needed to find out under which circumstances one type prevails over another. Despite the fact that the academic literature gives a variety of explanations for the different degrees of Europeanization between member states, like the goodness of fit argument (Ladrech 1994; Cowles, Caporaso, and Risse 2001), we suppose a more structural approach that looks at how the organizational features of national courts (career opportunities, research support, peer pressure, information, chambers or individual judge) and court systems (career opportunities on national level; specialization of courts, for example, a separate branch for labor law; authority of higher courts, etc.) influence the pattern of decision-making. Studies found differences between fields of law in how judges evaluate their knowledge and experience and between levels of courts and between judges of different member states (Mayoral, Jaremba, and Nowak 2014). How then does the organization influence patterns of decision-making? Does, for example, providing or withholding career opportunities, encouraging vocational training on EU law, issuing guidelines for how to apply EU law or the size of the caseload support a certain pattern? How does, for example, the existence of a European law coordinator, who, like in the Netherlands, has the task to encourage and facilitate the application of EU law, influence the patterns of decision-making? Does the promotion of European law experts to higher positions in the court system inspire others to use more EU law? Does the ministry of justice or a similar organization support or reject a certain pattern and does this influence the judges in their decisions?

Quantitative methods (for example, number of preliminary references, frequency of EU law references in national judgements) and qualitative methods (interviews, case studies, observation, etc.) could be fruitfully combined to contribute to a better understanding of the application of EU law in domestic courts. To study one or more courts in more detail while considering the national context seems to be a logical next step in finding mechanisms that support one type or another. This can be done in a comparative manner, either by comparing courts from the same state or courts from different states. Securing access to courts, which request a lot of preliminary rulings, would be a good start. Thick descriptions of how these courts are organized and how judges at these courts experience their work are needed. This way, the organizational features relevant for the application of the EU law can be identified and compared to organizational features of courts less involved with EU law.

Case Law

Case 6/64. Flaminio Costa v ENEL, ECLI:EU:C:1964:66.

Case 11/70 Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel, ECLI:EU:C:1970:114.

Case 33/76 REWE v Landwirtschaftskammer für das Saarland, ECLI:EU:C:1976:188.

Case 45/76 COMET BV v Produktschap voor Siergewassen, ECLI:EU:C:1976:191.

Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal SpA, ECLI:EU:C:1978:49.

Case 283/81 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health, ECLI:EU:C:1982:335.

Case 14/83 Von Colson and Kaufmann v Land Nordrhein-Westfalen, ECLI:EU:C:1984:153.

Case 222/84 Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary, ECLI:EU:C:1986:206.

Case 222/86 UNECTEF v Heylens, ECLI:EU:C:1987:442.

Case C-106/89 Marleasing SA v La Comercial Internacionale de Alimentacion SA, ECLI:EU:C:1990:395.

Case C-91/92 Faccini Dori v Recreb Srl, ECLI:EU:C:1994:292.

Joined Cases C-430/93 and C-431/93 Van Schijndel and van Veen v SPF, ECLI:EU:C:1995:441.

Joined Cases C-270 and C-270/97 Deutsche Post v Sievers and Schrage, ECLI:EU:C:2000:76.

Case C-497/13 Froukje Faber v Autobedrijf Hazet Ochten BV, ECLI:EU:C:2015:357.

Acknowledgments

We thank our two anonymous reviewers for their valuable feedback.

Disclosure statement

No potential conflict of interest was reported by the authors.

Correction Statement

This article has been republished with minor changes. These changes do not impact the academic content of the article.

Additional information

Funding

Monika Glavina acknowledges financial support from ERC Starting Grant 638154 (EUTHORITY). This article was written during her doctoral research at the Centre for Legal Theory and Empirical Jurisprudence, Faculty of Law, KU Leuven.

Notes

1. Case 14/83 Von Colson and Kaufmann v Land Nordrhein-Westfalen, ECLI:EU:C:1984:153, 26.

2. Case 6/64 Flaminio Costa v ENEL, ECLI:EU:C:1964:66; Case 11/70 Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel, ECLI:EU:C:1970:114; Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal SpA, ECLI:EU:C:1978:49.

3. Case 14/83 Von Colson and Kaufmann v Land Nordrhein-Westfalen, ECLI:EU:C:1984:153, 26 and 28; Case C-91/92 Faccini Dori v Recreb Srl, ECLI:EU:C:1994:292; Joined Cases C-270 and C-270/97 Deutsche Post v Sievers and Schrage, ECLI:EU:C:2000:76, 61–64; Case C-106/89 Marleasing SA v La Comercial Internacionale de Alimentacion SA, ECLI:EU:C:1990:395.

4. On the principle of effectiveness see Case 33/76 REWE v Landwirtschaftskammer für das Saarland, ECLI:EU:C:1976:188; Case 45/76 COMET BV v Produktschap voor Siergewassen, ECLI:EU:C:1976:191; Joined Cases C-430/93 and C-431/93 Van Schijndel and van Veen v SPF, ECLI:EU:C:1995:441, 17; On the principle of effective judicial protection see Case 222/84 Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary, ECLI:EU:C:1986:206; Case 222/86 UNECTEF v Heylens, ECLI:EU:C:1987:442.

5. Joined Cases C-430/93 and C-431/93 Van Schijndel and van Veen v SPF, ECLI:EU:C:1995:441, 13–14.

6. Case 283/81 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health, ECLI:EU:C:1982:335, 18.

7. The response rates varied between the countries. The lowest response rate was found among German judges (10%), followed by Slovenian (14.7%) and Croatian judges (16.6%). The highest response rate was obtained on Dutch judges (30%).

8. Case C-497/13 Froukje Faber v Autobedrijf Hazet Ochten BV, ECLI:EU:C:2015:357.