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ABSTRACT
This article constitutes the first systematic effort to promote a spatial and a subnational turn in the study of EU legal integration by demonstrating how geospatial methods and the selection of a subnational unit of analysis can improve our understanding of the use of the preliminary reference procedure. We conduct a theory-testing case study leveraging an original dataset of all references submitted by Italian courts from 1964 through 2013 and utilize geographic information systems (GIS) technology to analyze subnational patterns in reference activity. We use these data to evaluate whether several existing hypotheses explain recent subnational variation in reference rates. We uncover several illuminating findings. First, although population levels and domestic litigiousness best explain variation in reference rates, there is evidence that the domestic litigation effect is subnationally heterogeneous. Second, although use of the reference procedure has diffused since the 1960s, subnational reference rates are spatially clustered by issue area.
Acknowledgments
The authors would like to acknowledge the assistance of Juan Rodriguez, particularly for the geospatial analysis including in the contribution, as well as the feedback of panels at the 2015 European Union Studies Association, the 2015 Annual Conference for Europeanists, the Philadelphia Europeanists Workshop, and two anonymous reviewers. All remaining errors are our own.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes on contributors
R. Daniel Kelemen is professor of political science and law at Rutgers University.
Tommaso Pavone is PhD candidate in the Department of Politics at Princeton University.
Notes
1. As discussed in this paper, some studies have examined variations in rates of references between national high courts and lower courts, but these studies have not considered variations in rates of references across regions within countries.
2. Diffusion can be induced by a hegemonic power via coercion. However, given the lack of a supranational coercive apparatus in the EU, this diffusion mechanism is not as relevant to the EU context.
3. Evidence of competition-induced legal development has been somewhat scarcer. See Moser and Trubek (2006: 1471) and Shipan and Volden (Citation2008) for explanations of diffusion based on competitive pressures.
4. Following ISTAT conventions, we group Piemonte, Lombardia, Trentino-Alto Adige, Emilia-Romagna, Friuli-Venezia Giulia, Liguria, Valle d’Aosta, and Veneto as northern regions, and Abruzzo, Basilicata, Calabria, Campania, Molise, Puglia, Sardegna, and Sicilia as southern regions.
5. In the next section, we transition to using regions as our unit of analysis and defend this choice.
6. Note that this measure is designed to capture not specific support structures that would facilitate litigation but rather broader patterns of civic engagement and associational life that characterize a region.
7. This is the so-called Acte Clair doctrine. See Case 283/81, Srl CILFIT and Lanificio di Gavardo SpA v. Ministry of Health, [1982], ECR 3417. In the recent Traghetti del Mediterraneo decision, the ECJ further elaborated that the state can be held liable if a supreme court fails to refer a case to the ECJ in manifest violation of EU law. See Case C-173/03, Traghetti del Mediterraneo [2006] ECR I-5177.
8. This claim would seem to challenge the ‘judicial empowerment thesis' – a strand of scholarship positing that lower courts have great incentives to refer cases to the ECJ in order to acquire judicial review powers, whereas high courts who view the ECJ as a more direct threat to their authority are more reluctant to refer (Alter 1996, 2001; Weiler Citation1991, 1994). While such ‘judicial empowerment’ was likely a powerful dynamic driving references in the early periods of EU legal integration, the high levels of references coming from Italian supreme courts in recent years contradicts expectations of the judicial empowerment thesis and suggests that Italian high courts may be regaining control of the reference procedure.
9. For a figure facilitating the interpretation of this statistical result see Appendix D in the Online Appendix.
10. This analysis is unchanged if we use a 50 × 50 polygon grid instead; these results are included in the Online Appendix as Appendix F.
11. For information regarding how the Gi* statistic was run and why it is desirable to aggregate point data into polygons, refer to Appendix H in the Online Appendix.
