Explaining the Use of Preliminary References by Domestic Courts in EU Member States: A Mixed-Method Comparative Analysis

Vink, Maarten and Claes, Monica and Arnold, Christine (2009) Explaining the Use of Preliminary References by Domestic Courts in EU Member States: A Mixed-Method Comparative Analysis. In: UNSPECIFIED. (Unpublished)

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Abstract

The preliminary reference procedure has been crucial in the legal integration of the Europe Union. The procedure allows the European Court of Justice (ECJ) to involve national courts in the application and enforcement of European law. In this paper we analyze why the ECJ receives more requests for a preliminary reference from some member states than from others. While this is not a new question, only a few systematic comparative tests have been presented to date, and these display important theoretical and methodological shortcomings. Theoretically, previous studies underestimate or neglect two intuitively plausible factors: country size and litigation rates. We argue that courts in bigger and highly judicialized countries send more references to Luxembourg. Methodologically, the quantitative design of existing comparative studies give a first indication of possible causal relationships, but several of the cases remain not well explained. We argue that country comparison is improved by analyzing necessary and sufficient conditions that highlight the particular combination of factors for each case. We apply a mixed quantitative and qualitative comparative analysis and test existing and new explanations for variation in the number of preliminary references from the fifteen old EU member states in the period from 1995 to 2006.

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