Judicial Hierarchy in the Preliminary Ruling Procedure: Exploring the Relationship Between the First and Second Instance Courts

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Table of Contents: I. Introduction. – II. Debates on cross-court divergences. – II.1. Legal explanation. – II.2. Judicial empowerment and Court competition. – II.3. The role of the judicial organisation. – III. Judicial organisation and the team model. – IV. Data and methodology. – V. Results – V.1. Fact-finding v. law-finding specialisation. – V.2. Workload v. resources ratio. – VI. Conclusion.

Abstract: The Article contributes to the scholarly debate on cross-court variations in referral rates by exploring the role of the judicial hierarchy on the propensity of national judges to refer legal questions to the CJEU. The focus of this Article lies in exploring the relationship between the first and the second instance court judges and the question of how these two groups of judges perceive their role in the preliminary ruling. The Article places the study of judicial behaviour with respect to the preliminary ruling procedure on more rigorous theoretical grounds. Building on the team model of adjudication and based on mixed-method research design, it argues that law-finding specialisation, a more beneficial workload v. resources ratio and the fact that preliminary questions can only address points of law give the second instance courts judges more reasons to engage with Art. 267 TFEU proceedings as compared to their first instance counterparts.

Keywords: judicial cooperation – preliminary ruling procedure – Art. 267 TFEU – national courts – Europeanisation of national courts – team model.

European Papers, Vol. 5, 2020, No 2, pp. 799-823
2499-8249 - doi: 10.15166/2499-8249/413

* Postdoctoral Researcher, Faculty of Social Sciences, University of Antwerp, monika.glavina@uantwerpen.be.


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