and the considerations that play a role in the decision‐making in concrete cases.
The same is true about the satisfac-
tion of judges with the requested answers from Luxembourg.
There are some older studies suggesting a high imple-
mentation rate of CJEU judgments,
while recent contributions indicate a growing opposition of some courts to
comply with CJEU judgments.
Satisfaction and implementation are, however, not necessarily the same, because even
dissatisfied judges may implement CJEU judgments. Merely looking at implementation rates might not give the whole
picture of the functioning of the preliminary ruling procedure and could also conceal discontent with CJEU judgments.
This article delves into the mindset of national court judges and researches, firstly, their willingness to implement
CJEU judgments. It will, secondly, examine the judges' satisfaction with the requested CJEU judgments and, thirdly,
their motives to refer. This article focuses on the references of the four highest Dutch courts in the period 2013–
2016 (see Section 2 for an overview). The Netherlands is arguably one of the most compliant EU Member States, with
courts being generally ‘integration friendly’.
This general wisdom is, however, not entirely true. A Dutch judge, for
example, referred to the preliminary reference procedure as ‘a one‐way Q&A procedure that lacks timely exchange
of new relevant information’.
At the same time, there is also criticism in Dutch academic literature as to the sometimes
activist and far‐reaching case law of the CJEU, especially in certain areas such as tax law or intellectual property.
ing a conference in November 2015 attended by Dutch judges, legal assistants and other practitioners in the field of tax
law, 65% of the attendees agreed with the proposition that the CJEU does not make a major contribution to solving
European tax problems.
In addition, there are also indications that Cilfit is applied loosely by some of the highest courts
in the Netherlands.
The Council of State recently decided a point of EU law itself without a reference because of the
delay and consequences for other cases that a reference would entail, despite recognising that the matter did not con-
stitute an acte clair.
The latter was also explicitly mentioned by the Supreme Court as a reason for not referring.
This article will address the three research questions based on legal‐empirical research combining legal doctrinal
analysis and interviews. All decisions of the highest courts to refer and not to refer in the time period 2013–2016
were analysed to address the third question on the motives to refer.
To answer the first and second question on
For earlier empirical studies, see M. Wind, ‘The Nordics, the EU and the Reluctance towards Supranational Judicial Review’(2010) 48 Journal of Common
Market Studies, 1039; U. Jaremba, ‘Polish Civil Judiciary vis‐à‐vis the Preliminary Ruling Procedure: In Search of a Mid‐Range Theory’, in B. de Witte et al.
(eds.), National Courts and EU law: New Issues, Theories and Methods (Edward Elgar, 2016) 49; T. Pavone, ‘Revisiting Judicial Empowerment in the European
Union: Limits of Empowerment, Logics of Resistance’(2018) 6 Journal of Law and Courts, 303.
M. Bobek, ‘Of Feasibility and Silent Elephants: The Legitimacy of the Court of Justice through the Eyes of National Courts’,in M. Adams et al. (eds.), Judging
Europe's Judges: The Legitimacy of the European Court of Justice Examined (Hart, 2013), 197, 197.
An implementation rate of 90% was found for the Netherlands in the period 1961–1985. Nyikos likewise found an ‘extremely high’rate of 96%. J. Korte
(ed.), ‘Primus Inter Pares: The European Court and National Courts. The Follow‐up by National Courts of Preliminary Rulings ex Art. 177 of the Treaty of
Rome: A Report on the Situation in the Netherlands’(1990) EUI Law Working Paper; S.A. Nyikos, ‘The Preliminary Reference Process. National Court Imple-
mentation, Changing Opportunity Structures and Litigant Desistment’(2003) 4 European Union Politics, 397, 410.
See, e.g., the way in which the Danish Supreme Court was unwilling to change its ruling after Ajos. Case C‐441/14, Dansk Industri, ECLI:EU:C:2016:278;
See also A. Torres Pérez, ‘Melloni in Three Acts: From Dialogue to Monologue’(2014) 10 European Constitutional Law Review, 308; T. de la Mare and C.
Donnelly, ‘Preliminary Rulings and EU Legal Integration: Evolution and Stasis’,in P. Craig and G. de Búrca (eds.), The Evolution of EU Law (Oxford University
Press, 2011) 363, 390–391.
Bobek, above, n. 3, 213.
M. de Werd, ‘Dynamics at Play in the EU Preliminary Ruling Procedure’(2015), 22 Maastricht Journal of European and Comparative Law, 149, 152.
E.g. H. Vording, ‘EU‐verdragsvrijheden: minder Nederlands activisme gewenst’[EU‐freedoms: the need for less Dutch activism], in J.P.Boer (ed.), Kwaliteit
van belastingrechtspraak belicht. Liber amicorum aangeboden aan prof. dr. A.O. Lubbers (Sdu, 2013), 209; P.Oliver and C. Stothers, ‘Intellectual Property under
the Charter: Are the Court's Scales Properly Calibrated’(2017) 54 Common Market Law Review, 517–566.
‘De machine doet het monnikenwerk, wij het denkwerk’, 11 December 2015, https://ssr.nl/2015/de‐machine‐doet‐het‐monnikenwerk‐wij‐het‐denkwerk/
H. Sevenster and C. Wissels, ‘Laveren tussen Ferreira en Van Dijk’[Plying between Ferreira en Van Dijk], in M. Bosma et al. (eds.), Graag nog even bespreken.
Liber amicorum Henk Lubberdink (Raad van State, 2016), 83, 83.
ABRvS, 13 April 2016, NL:RVS:2016:890–891, para. 5.2.
The Supreme Court held that a reference would impede considerably effective and speedy criminal justice because the settlement of criminal cases in
which a similar question is at stake will be delayed for an unacceptably long period. HR 22 December 2015, ECLI:NL:HR:2015:3608
, para. 6.3.
Searched on www.rechtspraak.nl for ‘prejudiciële vragen’[preliminary questions] and ‘267 VWEU’[267 TFEU] for the period 1 January 2013 until 31
December 2016. For an extensive description of the research design and methodology, see J. Krommendijk, ‘The Preliminary Reference Dance between
the CJEU and Dutch Courts in the Field of Migration’(2018) 10 European Journal of Legal Studies, 101.