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

摘要

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