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

• Published date: 01 July 2019
• Author: Juan A. Mayoral
• Date: 01 July 2019
• DOI: http://doi.org/10.1111/eulj.12334

ORIGINAL ARTICLE

Judicial empowerment expanded: Political

determinants of national courts' cooperation with

the CJEU

Juan A. Mayoral*

Abstract

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

vis‐à‐vis 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 case‐law 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.

1|INTRODUCTION

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.

1

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.

2

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» / IUE2009‐0037.

1

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.

2

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;25:374–393.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

3

; support for European integration, political awareness and economic

exchanges

4

; litigation rate,

5

trust between judges

6

and the legal culture o f judges

7

; pragmatic and pract ical legal

considerations (e.g. length of the procedures)

8

; and familiarity with E U law and years of democracy ,

9

among

others.

10

Among these theories, the added value of so‐called “judicial empowerment theories”is 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 vis‐à‐vis executives, legislatures

11

and/or other

courts.

12

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.

13

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,

14

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

‘weapon’to legitimise their decisions vis‐à‐vis their political and judicial opponents. Furthermore, it widens the basic

assumption of judicial empowerment models by providing a broader cross‐national 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

3

R.D. Kelemen and T. Pavone, ‘The Political Geography of Legal Integration: Visualizing Institutional Change in the European Union’(2018) 70 World Politics,

358.

4

C.J. Carrubba and L. Murrah, ‘Legal Integration and Use of the Preliminary Ruling Process in the European Union’(2005) 59 International Organization, 399;

A. Stone Sweet and T.L. Brunell, ‘The European Court and the National Courts: A Statistical Analysis of Preliminary References, 1961–95’(1998) 5 Journal of

European Public Policy, 66.

5

M. Broberg and N. Fenger, ‘Variations in Member States’Preliminary References to the Court of Justice: Are Structural Factors (Part of) the Explanation?’

(2013) 19 European Law Journal, 488.

6

J.A. Mayoral, ‘In the CJEU Judges Trust: A New Approach in the Judicial Construction of Europe’(2017) 55 Journal of Common Market Studies, 551; J.A.

Mayoral, ‘Impact through Trust: The CJEU as a Trust‐enhancing Institution’, in M. Wind (ed.), International Courts and Domestic Politics (Cambridge University

Press, 2018), at 160; R. van Gestel and J. de Poorter, ‘Supreme Administrative Courts’Preliminary Questions to the CJEU: Start of a Dialogue or Talking to

Deaf Ears' (2017) 6 Cambridge International Law Journal, 122.

7

J.E. Rytter and M. Wind, ‘In Need of Juristocracy? The Silence of Denmark in the Development of European Legal Norms’(2011) 9 International Journal of

Constitutional Law, 470; T. Pavone, ‘Revisiting Judicial Empowerment in the European Union: Limits of Empowerment, Logics of Resistance’(2018) 6 Journal

of Law and Courts, 303.

8

U. Jaremba, ‘Polish Civil Judiciary Vis‐à‐Vis the Preliminary Ruling Procedure: In Search of a Mid‐Range Theory’,inB.deWitte,J.A.Mayoral,U.

Jaremba, M. Wind and K. Podstawa (eds.), National Cour ts and EU Law: New Issues, Theories and Meth ods (Edward Elgar Publishing, 2016), at 68; J.

Krommendijk, ‘The Preliminary Reference Dance between the CJEU and Dutch Courts in the Field of Migration’(2018) 10 European J ournal of Legal

Studies, 101.

9

L. Hornuf and S. Voigt, ‘Analyzing Preliminary References as the Powerbase of the European Court of Justice’(2014) 39 European Journal of Law and Eco-

nomics, 287.

10

L.J. Conant, A. Hofmann, D. Soennecken and L. Vanhala, ‘Mobilizing European Law’(2018) 25 Journal of European Public Policy, 1376; J.A. Mayoral and A.

Torres Pérez. 'On Judicial Mobilization: Entrepreneuring for policy change at times of crisis' (2018). 40 Journal of European Integration, 719.

11

F. Ramos Romeu, ‘Law and Politics in the Application of EC Law: Spanish Courts and the CJEU 1986–2000’(2006) 43 Common Market Law Review, 395; J.

H.H. Weiler, ‘A Quiet Revolution: The European Court of Justice and Its Interlocutors’(1994) 26 Comparative Political Studies, 510.

12

K.J. Alter, Establishing the Supremacy of European Law: The Making of an International Rule of Law in Europe (Oxford University Press, 2001).

13

U. Jaremba and J.A. Mayoral, ‘The Europeanization of National Judiciaries: Definitions, Indicators and Mechanisms’(2018) 26 Journal of European Public

Policy, 386.

14

Ramos Romeu, above, n. 11; L. Conant, Justice Contained: Law and Politics in the European Union (Cornell University Press, 2002); M. Wind, ‘Do Scandina-

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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