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ABSTRACT
This article contributes to the study of the preliminary reference procedure and the literature on the decentralized enforcement of European Union (EU) law through national courts. Drawing on the ‘compliance pull’ explanation for why national courts submit preliminary references to the Court of Justice of the European Union (ECJ), it suggests that a greater need to clarify ‘the validity and interpretation’ of one act compared to another is associated with variation in Article 267 submissions. Drawing on a sample of 1,300 national court decisions on EU directives with variation in Article 267 Treaty on the Functioning of the European Union (TFEU) submissions, this article finds that disputes relating to directives leaving more room for manoeuvre in implementation (‘delegation’) and relating to more complex regulatory issues (‘information intensity’) are more likely to be referred to the ECJ for interpretation. It argues that neglecting the ‘compliance pull’ explanations has consequences for how we conceptualize ‘decentralized enforcement’.
Acknowledgements
I would like to thank Christine Rothmayr, Robert Thomson and William Phelan for their feedback. This work was carried out at the Department of Political Science at the University of Dublin, Trinity College and was supported by the Postgraduate Scholarship of the Irish Research Council 2012–2015.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes on contributor
Denise Carolin Hübner holds a PhD from the Department of Political Science of the University of Dublin, Trinity College. She is currently working for the European Space Agency’s EU Policy Office.
Notes
1 EU directives were sampled until the year 2000. Given that there is a lag between acts entering into effect and the formal opening of court proceedings, the latest possible end date for data collection was selected.
2 Many of issues regulated by a given directive cut across policy areas.
3 These indicators do not cover normative aspects relating to EU laws. While a lot of ECJ precedents concern rights adjudication, it is not easy to measure how normative one act is compared to another.
4 Take Directive 1985/611/EEC relating to undertakings for collective investment in transferable securities (UCITS), for example. It contains 16 provisions delegating authority to member states. Article 21 of the directive counts for two provisions delegating authority to member states (emphasis added):
‘1. The Member States may authorize UCITS to employ techniques and instruments relating to transferable securities under the conditions and within the limits which they lay down provided that such techniques and instruments are used for the purpose of efficient portfolio management.’
5 Case 24/62 – Germany v the Commission [1963] ECR 00063.
6 The values for the number of recitals are similar to Thomson and Torenvlied’s (Citation2011: 148) measurements for the 86 directives in their sample. They measure a lowest value of two and a highest value of 73 recitals per directive with a mean of 23.33 and a standard deviation of 16.67.
7 The two doctrines also apply to courts of lower instances and may be cited as reasons why the ECJ may decline ruling on disputes that lower courts refer to it.
8 Only 3 per cent of all decisions in the sample were handed down by constitutional courts.
9 The odds ratio for the variable ‘delegation’ is 1.07, which means that the odds of observing a positive outcome over a negative outcome on the dependent variable increase by 7 per cent if we add one more provisions delegating authority or 10 times the odds ratio if we add 10 more provisions delegating authority (70 per cent).
10 The odds ratio for the variable ‘recitals’ is 1.02, which means that the odds of observing a positive outcome over a negative outcome on the dependent variable increase by 2 per cent if we add one more recital or 10 times the odds ratio if we add 10 more recitals (20 per cent).
