To Refer or Not to Refer, That Is the (Preliminary) Question: Exploring Factors Which Influence the Participation of National Judges in the Preliminary Ruling Procedure

Abstract

This paper explores factors that either motivate or constrain national judges’ participation in the preliminary ruling procedure. By incorporating insights and evidence from American judicial politics literature and drawing from three models of judicial decision making: the attitudinal model, the team model, and the resource management model, it places the study of judicial behaviour with respect to the preliminary ruling procedure on more rigorous theoretical grounds. The paper is based on survey results conducted among 415 national judges from two new EU Member States: Slovenia and Croatia. In line with the theoretical predictions, the results show that the decision to make a referral to the CJEU is determined by several individual- and court-level factors. These are the position that a court occupies in a national judicial hierarchy, the judicial workload and availability of resources, and judges’ knowledge and experiences with respect to EU law and Article 267 TFEU proceedings. Keywords: CJEU, preliminary ruling procedure, judicial behaviour, team model.   This work is licensed under the Creative Commons Attribution − Non-Commercial − No Derivatives 4.0 International License.   Suggested citation: M Glavina, ‘To Refer or Not to Refer, that is the (Preliminary) Question: Exploring Factors which Influence the Participation of National Judges in the Preliminary Ruling Procedure’ (forthcoming in 2020) 16 CYELP.