"Rethinking the Role of National Courts in European Integration: A Political Study of British Judicial Discretion"

Golub, Jonathan. (1995) "Rethinking the Role of National Courts in European Integration: A Political Study of British Judicial Discretion". In: UNSPECIFIED, Charleston, South Carolina. (Unpublished)

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Abstract

Since the early 1980s, there has been an increasing awareness that the European Court of Justice (ECJ) plays a significant role in the process of European integration. Indeed, the supremacy of EC law and the powerful role of the ECJ provide the Community with supranational characteristics which distinguish it from traditional international organisations. It has also become widely recognised that development of the Community's supranational "new legal order"--which has transformed the treaty into a constitution, provided the foundation upon which to build an integrated European economy, and restricted the sovereignty and political autonomy of the member states--relies heavily on the cooperation of national courts and their decision to make preliminary references under the terms of Article 177 of the Treaty. Despite the political significance of preliminary references within this new legal order, analysis of the ECJ and of member state courts has mostly been confined to legal scholarship, with only a few notable exceptions which explore the political aspects of judicial activity. A common element in integration studies which do attempt to combine legal and political analysis has been to identify the motives behind ECJ rulings, and to discover incentives which propel judicial cooperation between the ECJ and national courts. These studies share a central assumption: that the role of the national courts in the process of European integration has been to cooperate with the ECJ by providing it with frequent preliminary references. The central question addressed in this paper is whether the traditional model explains patterns of British preliminary references since its accession in 1972. The central conclusion of the paper is that the traditional model is not only incapable of explaining patterns of British preliminary references, but also incapable of accounting for patterns of preliminary references in general. These patterns raise a number of important research questions for scholars concerned with judicial politics and the role of national courts in European integration. The paper also reveals that pre-occupation with frequent preliminary references is misguided; rather than constituting a primary measure of cooperation, the preliminary reference procedure itself is in some senses an effectively irrelevant instrument. Thus, while the pattern of British preliminary references empirically does not conform to the model, this may or may not signify judicial resistance to integration. By reconsidering the traditional model, including additional variables, and examining individual policy sectors it may be possible to draw more meaningful conclusions about the role of national courts in European integration.

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