Referral-Free Behaviour of National Judges: What Motivates the Use of EU Law Outside of the Preliminary Ruling Procedure?

Over the last three decades, the preliminary ruling procedure inspired a colossal amount of research. Legal scholars and political scientist have focused on the number of preliminary questions submitted to the CJEU and on how the referral activity of national courts varies across time, member states and levels of national judicial hierarchy. In this research, by contrast, I argue that the volume of preliminary references sent to Luxembourg does not necessarily reflect the full picture of the participation of national judiciaries in the process of the application and enforcement of EU law. The number of national decisions involving EU law is estimated to be much larger than the number of cases referred to the CJEU (Chalmers, 1997; Conant, 2002; Hübner, 2016, 2018). Yet, the question of how and to what extent national judges use EU law in their daily practices, as well as what motivates the use of EU law remains a wide and largely unexplored area of research. Based on the results obtained by surveying 450 judges from two new EU Member States: Slovenia and Croatia, this chapter explores the extent to which EU law appears in day-to-day work of national judges. Building on the team model of adjudication, the attitudinal model and the resource management model I explore factors which either motivate or constrain individual judges to use EU law in cases which appear before them. Using structural equation modeling, I test how judicial knowledge of, experience with, and attitudes towards EU law, as well as judicial workload and resources at the court judges sit on affect the referral free behaviour of national judges. This chapter complements the literature on European judicial politics by, first, exploring the referral-free behaviour of national judges which is still a largely unexplored area of research and, second, by stepping away from country-level panel data and by studying individual judges nested in Member States’ courts.