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

• Date: 01 July 2019
• Author: Jasper Krommendijk
• DOI: http://doi.org/10.1111/eulj.12322
• Published date: 01 July 2019

ORIGINAL ARTICLE

The highest Dutch courts and the preliminary

ruling procedure: Critically obedient interlocutors

of the Court of Justice

Jasper Krommendijk*

Abstract

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, legal‐formalist 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.

1|INTRODUCTION

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 aggregate‐level factors, such as the level of gross domestic product (GDP), population size or

the majoritarian/constitutional tradition.

1

Yet, still little is known about the motives of individual judges to refer (or not)

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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’(2017–2021) funded with a VENI‐grant 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.

1

E.g. M. Broberg and N. Fenger, ‘Variations in Member States’Preliminary 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;25:394–415.wileyonlinelibrary.com/journal/eulj

and the considerations that play a role in the decision‐making in concrete cases.

2

The same is true about the satisfac-

tion of judges with the requested answers from Luxembourg.

3

There are some older studies suggesting a high imple-

mentation rate of CJEU judgments,

4

while recent contributions indicate a growing opposition of some courts to

comply with CJEU judgments.

5

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’.

6

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’.

7

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.

8

Dur-

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.

9

In addition, there are also indications that Cilfit is applied loosely by some of the highest courts

in the Netherlands.

10

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.

11

The latter was also explicitly mentioned by the Supreme Court as a reason for not referring.

12

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.

13

To answer the first and second question on

2

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.

3

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.

4

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.

5

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.

6

Bobek, above, n. 3, 213.

7

M. de Werd, ‘Dynamics at Play in the EU Preliminary Ruling Procedure’(2015), 22 Maastricht Journal of European and Comparative Law, 149, 152.

8

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.

9

‘De machine doet het monnikenwerk, wij het denkwerk’, 11 December 2015, https://ssr.nl/2015/de‐machine‐doet‐het‐monnikenwerk‐wij‐het‐denkwerk/

10

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.

11

ABRvS, 13 April 2016, NL:RVS:2016:890–891, para. 5.2.

12

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.

13

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.

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