It has long been believed that judges at the lower echelons of the judiciary are the drivers of legal integration in Europe. Yet, drawing on a new study, Arthur Dyevre and Monika Glavina show that this is not what the data says. Analysing the entirety of preliminary references submitted by domestic courts from 1961 to 2017, they demonstrate that although first instance courts did pioneer the preliminary ruling procedure in the early years of European legal integration, they have been overtaken by peak courts, which now dominate the formal interlocutory procedure. In fact, a relatively small club of apex courts account for the lion’s share of references submitted to the European Court of Justice.

The narrative of judicial empowerment has been a popular explanation of the referral behaviour of national courts. Seeking to expand their powers either in relation to other branches of government or other courts in the national judicial hierarchy, domestic judges, especially those at the bottom of the judicial pecking order, were willing to forge an alliance with the European Court of Justice. While anecdotal evidence and patterns of referral activity in some countries (e.g. Italy) seemed to support this claim, the first quantitative study in the late 1990s had already challenged this hypothesis. Advances in judicial behaviour research have also questioned the centrality of conflicts and power struggles in explaining the operations of court systems.

New data, new insights

In a recent study, we debunk the notion that lower courts are motors of European legal integration and find that, although lower courts did submit more, in absolute terms, in the early years of European integration, appellate courts and peak courts have soon caught up. We base our conclusions on the data on all preliminary questions submitted to the European Court of Justice between 1961 and 2017, which classifies all referring courts according to their position in the national judicial system.

Figure 1: Referral activity by court level, 1961-2017

Note: For more information, see the authors’ accompanying paper in the Journal of European Public Policy

Looking at the plot in Figure 1, it is easy to see what led scholars to emphasise the role of lower courts in the process of European legal integration. Based on the first four decades of referral activity, first instance courts have been the most frequent submitters in absolute terms. But this pattern masked the steady and consistent rise of preliminary references originating in appeal and, to an even greater extent, peak courts. At the turn of the millennium, peak courts overtook first instance courts and, since the mid-2000s, they consistently send as many, if not more, preliminary references than first instance courts.

This evolution becomes even more impressive when we consider that there are several thousands of first instance courts but far fewer intermediate appeal courts and only 65 peak courts in the entire European Union. Among the most frequent interlocutors of the Court of Justice are the German supreme tax court (the Bundesfinanzhof), the Dutch supreme court (Hoge Raad der Nederlanden), the French supreme court (Cour de Cassation), the Italian supreme administrative court (Consiglio di Stato) and the two Austrian supreme courts (Oberster Gerichtshof and Verwaltungsgerichtshof). Together the three Dutch supreme courts account for nearly 55 per cent of Dutch references.

Alternative explanation: courts as teams and judges as workers

What explains these shifts in referral dynamics? We offer two explanations. Our first argument draws on theories that attempt to explain interactions among the judges that form a judicial hierarchy. Court systems are designed to allocate resources and workload across different tiers to maximise the number of “correct” – according to the standards of the legal community – case dispositions. Lower courts specialise in fact-finding and dispute resolution.

As each judge must process a larger caseload, lower courts have less resources to devote to law-finding (establishing what the law is in complex technical cases) and law creation (deciding what the law ought to be in cases where existing rules and doctrines are indeterminate). Higher courts, by contrast, process a smaller number of cases on which they can expend more resources to assist the lower court in finding what the law is in complex cases and in developing the law where it is ambiguous or unclear. Fact-finding is typically something that top court judges don’t do.

Because preliminary references can only address points of law, the procedure has more bearing on the work of higher courts than on that of first instance judicial bodies. At the lower level of judicial hierarchy, the time constraints arising from the need to handle a large caseload tends to work as a counterincentive to submit references. Due to their lower caseload/resource ratio, the opportunity cost of referring is higher for lower court judges. Time and intellectual efforts invested in drafting a reference and waiting for the Court of Justice’s preliminary ruling are resources that cannot be expended on other cases awaiting resolution or even on time at home with family. Because of their focus on law-finding and law-creation and lower opportunity costs, peak courts stand to benefit from more participation in the preliminary ruling procedure.

Self-reinforcing logic of institutional consolidation

The fact that the higher courts were less dominant in the formative years of the European project can be explained by the self-reinforcing logic of institutional consolidation. When the EU (or, rather, the European Economic Community) was a relatively obscure international organisation and the Court of Justice an even more obscure judicial body, few legal actors knew or supported the new supranational law. Yet in a tiny fraction of cases out of the millions of disputes adjudicated by the thousands of lower courts scattered across member states the parties and/or the judges were adventurous enough to give the preliminary ruling system a go. And this was enough to kickstart a snowballing process of institutional consolidation.

As more courts submitted and more litigants invoked EU law, the expectation grew that higher courts would have to comply with their obligation, explicitly stated in the Treaties, to submit references when EU law is material to the resolution of the dispute at hand. Even the more reluctant or sceptical courts soon found themselves locked-up by the self-reinforcing logic of institutionalisation and there was no way for them to put the genie back into the bottle. Once domestic judges had recognised the emergence of an EU judiciary built around the preliminary ruling procedure, the division of labour among the distinct tiers of the judicial system started applying with full force, leading to the observed rise in the referral rates of intermediate and apex courts.

For more information, see the authors’ accompanying paper in the Journal of European Public Policy

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Note: This article gives the views of the authors, not the position of EUROPP – European Politics and Policy or the London School of Economics. The research has received funding from the European Research Council (ERC) under the European Union’s Horizon 2020 research and innovation programme (Starting Grant 638154). Featured image credit: Patrick Janicek (CC BY 2.0)

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About the authors

Arthur DyevreKU Leuven
Arthur Dyevre is a Professor in the Centre for Legal Theory and Empirical Jurisprudence at KU Leuven and Principal Investigator of the ERC-funded EUTHORITY Project.

Monika GlavinaKU Leuven
Monika Glavina is a PhD candidate at the Centre for Legal Theory and Empirical Jurisprudence at KU Leuven and a researcher of the ERC-funded EUTHORITY Project.

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