Professors, University of Copenhagen, Faculty of Law, Studiegaarden, Studiestraede 6, DK-1455 Copenhagen, Denmark.
Variations in Member States’ Preliminary References to the Court of Justice—Are Structural Factors (Part of) the Explanation?
Article first published online: 28 APR 2013
© 2013 John Wiley & Sons Ltd
European Law Journal
Volume 19, Issue 4, pages 488–501, July 2013
How to Cite
Broberg, M. and Fenger, N. (2013), Variations in Member States’ Preliminary References to the Court of Justice—Are Structural Factors (Part of) the Explanation?. European Law Journal, 19: 488–501. doi: 10.1111/eulj.12045
- Issue published online: 21 JUN 2013
- Article first published online: 28 APR 2013
- Manuscript Accepted: MAY 2012
- Manuscript Received: APR 2012
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 variations 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).