Europeanization by the Courts

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Abstract

There is a broad consensus that courts play a significant role in the process of European integration. By giving rulings on preliminary references the European Court of Justice (ECJ) asserted the two central principles “supremacy” and “direct effect”, which transformed the treaty into something like a constitution. The interaction between national judges and the ECJ through the preliminary reference procedure eased this process, but not all member states used this possibility in the same degree. Whereas German, Italian and Austrian judges widely used this procedure in recent years, other countries like France, Ireland, Spain and Portugal hardly did. In this empirical analysis, which is based on data covering all current member states, I try to find some general explanations and fundamental aspects of variance in preliminary references by applying Europeanization and political-institutional theory.

1. Introduction

1.1 The Preliminary Ruling Procedure

The ECJ has under article 234 (ex Article 177) jurisdiction to give preliminary rulings on references by national courts (see box below). Under this procedure, national courts can ask for the ECJ to make a judgement on any case brought before them that relates to any aspect of European Union (EU) law, and the ECJ ruling is then used by the national courts in their own judgement on the case in hand. Simon Hix shows that national courts give the final ruling on many cases of EU law, which was probably the intention of the drafters of the Treaty of Rome. Furthermore the direct link between national courts and the ECJ through the preliminary ruling mechanism is seen as critical force behind national adaptation to Europeanization (Alter 1996: 466; Conant 2001: 97; Hix 1999: 107).