Variations in Member States’ Preliminary References to the Court of Justice—Are Structural Factors (Part of) the Explanation?

• Published date: 01 July 2013
• Date: 01 July 2013
• Author: Niels Fenger,Morten Broberg
• DOI: http://doi.org/10.1111/eulj.12045

Variations in Member States’ Preliminary

References to the Court of Justice—

Are Structural Factors (Part of)

the Explanation?

Morten Broberg and Niels Fenger*

Abstract: The preliminary reference procedure in Article 267 of the Treaty on the

Functioning of the European Union (TFEU), which enables national courts to request

the Court of Justice to provide a ruling on the interpretation or validity of an EU legal

act, is widely considered to be the jewel in the crown of EU law. When considering the

number of references from different Member States, it will become immediately apparent

that there are considerable variations. This article examines to what extent these vari-

ations may be explained by three structural factors, namely (1) population size, (2)

willingness to litigate and (3) Member State compliance with EU law. It is concluded

that some—but not all—of the variations in number of references from Member State

judiciaries may be attributed to structural factors rather than being merely a reflection

of different Member State courts’ willingness to make use of Article 267 TFEU on such

references (the so-called behavioural factors).

I The Preliminary Reference Procedure

The preliminary reference mechanism, laid down in Article 267 of the Treaty on the

Functioning of the European Union (TFEU),1enables Member States’ courts to

request the Court of Justice of the European Union2to provide a binding ruling on

the interpretation or validity of an EU legal act, while leaving the application of the

preliminary ruling to the referring court.3This mechanism is unequivocally the most

successful tool of the Court of Justice and has played an important role in shaping the

constitutional evolution of the EU.

A frequent observation is that there are considerable variations in the number of

references stemming from the different Member States. Essentially, a preliminary

reference presupposes two things: First, there must be a case before a Member State

court that gives rise to EU law issues that may form the basis for a reference. Second,

* Professors, University of Copenhagen, Faculty of Law, Studiegaarden, Studiestraede 6, DK-1455

Copenhagen, Denmark.

1Originally Art 177 EEC, subsequently Art 234 EC, and today Art 267 TFEU.

2In what follows ‘the Court of Justice’ or simply ‘the Court.’

3For an in-depth examination of the EU’s preliminary ruling system, see M. Broberg and N. Fenger,

Preliminary References to the European Court of Justice (Oxford University Press, 2010).

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European Law Journal, Vol. 19, No. 4, July 2013, pp. 488–501.

© 2013 John Wiley & Sons Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK

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