The highest Dutch courts and the preliminary ruling procedure: Critically obedient interlocutors of the Court of Justice

Date01 July 2019
Published date01 July 2019
The highest Dutch courts and the preliminary
ruling procedure: Critically obedient interlocutors
of the Court of Justice
Jasper Krommendijk*
Little is known about the motives of national courts to request a preliminary ruling from the Court
of Justice of the EU (CJE U) or their satisfact ion with and implemen tation of answers. Thi s article
aims to fill this empirical gap on the basis of an analysis of judgments complemented with inter-
views with judges of the highest courts in the Netherlands. This article shows that judges exten-
sively use the procedure and follow its outcome almost without exception, despite some
dissatisfaction. This discontent has surprisingly not affected the courts' willingness to refer in
future. The findings also downplay the bureaucratic politics and judicial empowerment theses
emphasising strategic motives to refer. Instead, legalformalist considerations and the desire to
contribute to the development of EU law explain most of the references of the Dutch Supreme
Court. The decision (not) to refer of the three highest administrative courts is primarily based on
practical and pragmatic considerations.
There has been much (quantitative) research that tries to explain whycourts in some Member States request more pre-
liminary rulings from the Court of Justice of the European Union (CJEU) than courts in other Member States. The aim of
such studies is to identify aggregatelevel factors, such as the level of gross domestic product (GDP), population size or
the majoritarian/constitutional tradition.
Yet, still little is known about the motives of individual judges to refer (or not)
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This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and
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© 2019 The Authors. European Law Journal Published by John Wiley & Sons Ltd
*Associate Professor of International and European Law, Radboud University Nijmegen. This articleforms part of the research project It takes two to tango.
The preliminary reference dance between the Court of Justice of the European Union and national courts(20172021) funded with a VENIgrant by the
Netherlands Organisation for Scientific Research (NWO). I would like to thank Jesse Claassen, Lize Glas, John Morijn and Zamira Xhaferri for their valuable
feedback on earlier versions.
E.g. M. Broberg and N. Fenger, Variations in Member StatesPreliminary References to the Court of Justice Are Structural Factors (Part of) the Expla-
nation?(2013) 19 European Law Journal, 488.
Received: 3 October 2018 Revised: 18 April 2019 Accepted: 25 April 2019
DOI: 10.1111/eulj.12322
394 Eur Law J. 2019;
and the considerations that play a role in the decisionmaking 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 oneway 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 farreaching 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 legalempirical research combining legal doctrinal
analysis and interviews. All decisions of the highest courts to refer and not to refer in the time period 20132016
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 visàvis the Preliminary Ruling Procedure: In Search of a MidRange 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 19611985. Nyikos likewise found an extremely highrate of 96%. J. Korte
(ed.), Primus Inter Pares: The European Court and National Courts. The Followup 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 C441/14, 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, 390391.
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, EUverdragsvrijheden: minder Nederlands activisme gewenst[EUfreedoms: 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, 517566.
De machine doet het monnikenwerk, wij het denkwerk, 11 December 2015,
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:2016:890891, 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 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.

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