Who Asks Most? Referral Behaviour and Institutional Setup in the European Union Legal Order

By enabling the Court of Justice to engage and enlist the support of domestic judges, the preliminary ruling mechanism is widely recognised to have played a major role in securing the effectiveness of EU law and in furthering the legal and political integration of the continent. Somewhat less appreciated, though, is the fact that national courts differ significantly in terms of institutional configuration, formal powers and resources and that these disparities can influence the rate at which judges submit references. In this paper, we explore how domestic courts differ in their referral behaviour depending on the position they occupy in the juridical hierarchy (first instance, appellate, supreme) and their subject matter jurisdiction (civil, criminal, administrative, or specialised) on the basis of a new dataset complementing and correcting data initially collected by Stone Sweet and Brunell (1998). We discuss how the judges’ motives along with the varying resources and constraints attending the court on which they sit may affect their propensity to submit references. We also consider the logic of spill-over and neo-functionalist arguments regarding the expansion of EU law litigation to new areas of law.status: publishe