Judicial empowerment expanded: Political determinants of national courts' cooperation with the CJEU

Published date01 July 2019
Date01 July 2019
Judicial empowerment expanded: Political
determinants of national courts' cooperation with
the CJEU
Juan A. Mayoral*
Scholars in EU studies have developed diverse justifications for explaining why national judges
cooperate with the Court of Justice of the European Union. In this regard, judicial empowerment
theories have stressed the strategic importance of cooperation for empowering national courts
visàvis high courts and political actors. Nevertheless, these explanations have been restricted
to the use of preliminary references by lower courts. This contribution expands the explanatory
power of these approaches by exploring other potential scenarios and instruments that national
judges can use to challenge the position of their governments and judicial superiors, for example,
by emphasising the importance of CJEU precedent for their strategic behaviour. By offering new
data collected from caselaw and surveys, this article offers a more systematic assessment of the
relevance of cooperation for national judges to reinforce their authority against other institutions.
The findings call for a revision of the traditional understanding of judicial empowerment theories.
Scholars of European Union studies have carried out extensive research explaining how the mechanism of pre-
liminary references contained in Art. 267 of the Treaty on the Funct ioning of the European Union(hereinafter
TFEU) has boosted cooperation between national courts and the Court of Justice of the European Union
(CJEU), contributi ng to the legal integrat ion and constitutional isation of the EU's leg al system.
This cooperation
consists in national judges requesting the CJEU to give preliminary rulings which can assist them in the applica-
tion of EU law in their n ational legal system s.
The literature on preliminary references has already provided
*Assistant Professor and Jean Monnet Chair in EU law & Politics, iCourts, Centre of Excellence for International Courts, Faculty of Law, University of
Copenhagen, Copenhagen, Denmark (juan.mayoral@jur.ku.dk). This study was supported by Danmarks Grundforskningsfond, Grant/Award Number:
DNRF105; and Ministerio de Educación, Cultura y Deporte, Grant/Award Number: Becas «Salvador de Madariaga» / IUE20090037.
J.H.H. Weiler, TheTransformation of Europe(1991) 100 Yale Law Journal, 2403; A.M. Burley and W. Mattli, Europe Before the Court: A Political Theory
of Legal Integration(1993) 47 International Organization, 41.
According to Article 267 TFEU (Treaty on the Functioning of the European Union), national judges may request the CJEU to give preliminary
rulings concerning: (a) the in terpretation of the Treaties; (b) the validi ty and interpretation of acts of the ins titutions, bodies, offices or age ncies of
the Union.
Received: 15 November 2017 Revised: 11 June 2019 Accepted: 17 June 2019
DOI: 10.1111/eulj.12334
374 © 2019 John Wiley & Sons Ltd. Eur Law J. 2019;25:374393.wileyonlinelibrary.com/journal/eulj
several political , institutional and contextual reason sf or these referrals, such as: the configur ation of the national
legal order and judicial review powers
; support for European integration, political awareness and economic
; litigation rate,
trust between judges
and the legal culture o f judges
; pragmatic and pract ical legal
considerations (e.g. length of the procedures)
; and familiarity with E U law and years of democracy ,
Among these theories, the added value of socalled judicial empowerment theoriesis the emphasis that they
place on the role of national judges' political motivations for cooperating with the CJEU. These accounts argue that
national judges refer cases to the CJEU to empower their position visàvis executives, legislatures
and/or other
Nevertheless, despite their success in describing the impact of politics in the use of preliminary references
sent by national courts, a comprehensive picture of national judges' political motivations in their application of EU law
is still lacking. Judicial empowerment accounts have, until now, limited discussion on this issue to the use of prelim-
inary references by lower courts. Bearing this in mind, this contribution will supplement the existing literature by
exploring other potential scenarios and instruments that national judges can use to challenge the position of their
governments and judicial superiors.
Through the analysis of new data, the present research seeks to expand the explanatory power of judicial empow-
erment theories. By building on previous contributions,
examining national courts' considerations and the relevance
of CJEU precedents for the application of EU law, this article shows how judges can implement CJEU precedent as a
weaponto legitimise their decisions visàvis their political and judicial opponents. Furthermore, it widens the basic
assumption of judicial empowerment models by providing a broader crossnational exploration showing how courts
use CJEU precedent against governments. Finally, this research identifies new scenarios in which political struggle
may occur, namely: when high courts compete with each other to have the last word on policies or within their
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Studies, 101.
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nomics, 287.
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Torres Pérez. 'On Judicial Mobilization: Entrepreneuring for policy change at times of crisis' (2018). 40 Journal of European Integration, 719.
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Policy, 386.
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vians Care about International Law? A Study of Scandinavian Judges Citation Practice to International Law and Courts(2016) 85 Nordic Journal of Interna-
tional Law, 281.

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