Seizing opportunities: the determinants of the CJEU’s deference to national courts

ABSTRACT

Recent studies of the preliminary reference procedure highlight that the Court of Justice of the European Union (CJEU) defers to national courts at higher rates than scholars initially expected. However, we know little about how the Court chooses which questions to leave for national courts to determine and which ones require its attention. I argue that the CJEU evaluates whether a referred question is representative of a broader set of cases nascent in European judiciaries. I expect that Member States expressing an interest in a reference signal that the Court’s answer would have an impact on cases in European judiciaries beyond the dispute in the referring national court. Drawing on an original dataset covering more than 5,000 questions referred to the CJEU between 1995 and 2011, I show that the likelihood of the CJEU leaving legal questions unresolved decreases with the number of Member States submitting briefs to the Court.

KEYWORDS:

• Legal precedent
• deference
• national courts
• preliminary reference procedure

Acknowledgements

I am thankful for thoughtful feedback on earlier versions of the manuscript by Michal Ovádek, Joshua Fjelstul, Theresa Squatrito, Daniel Naurin and Johan Lindholm as well as the participants at the Comparative Politics and International Relations research seminars at LMU Munich. I would also like thank the three anonymous reviewers for their useful suggestions on how to improve the manuscript. Replication material is available at https://phischroeder.github.io/data/.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 The data collection relied on written reports of hearings held at the CJEU in preliminary reference proceedings, which are available to scholars only for preliminary references lodged prior to 2012. Hence, the inferences we can draw from the following analyses are limited to a period prior to challenges following the United Kingdom’s exit from the EU and democratic backsliding in Central European Member States (Kelemen, 2016; Kelemen et al., 2018).

2 To my knowledge, regression models estimated with the Zelig package do not support the clustering of standard errors, hence I provide estimates from simple logistic regressions with standard errors clustered by proceedings as a reference point.

3 I include dummy variables for the following national areas of law: agriculture, environment, intellectual property, labour law, migration, social policies and tax, as well as a dummy indicating whether the question exclusively concerned EU law. All areas of law included had more than 150 observations in my data.

4 Additional checks included in the appendix report the models’ results without these controls for reference.

5 Note that AGs with fewer than 70 opinions to their name in my data are assigned to the reference category.

6 We can also see that the bias correction of the rare events logistic regression somewhat shrinks the coefficient point estimates.

7 Note that the coefficients’ confidence intervals for the variables MS favouring restrictions and MS opposing restrictions somewhat overlap zero, which is unsurprising given the relatively small number of observations in the data subset.

Additional information

Funding

This research was conducted as part of the IUROPA project (www.iuropa.pol.gu.se), financed by the Swedish Research Council Project No. 2018-04215.Vetenskapsrådet

Notes on contributors

Philipp Schroeder

Philipp Schroeder is an Assistant Professor at the Department of Political Science at Ludwig-Maximilians-University Munich.