The comeback of high courts? Exploring national court opinions in the preliminary ruling procedure

Previous research suggests that the inter-court competition theory is self-eroding over time and that national high courts have reasserted their powers and are more active in the EU legal system by referring more cases to the Court of Justice of the European Union (CJEU). This paper explores how national high courts have reasserted their control over EU legal development by studying their expression of opinions in the preliminary ruling procedure. Using an original data set on national court opinions, the analysis shows that low and high courts express opinions to the same extent, suggesting that high courts have caught up with the lower courts. Two other factors that increase the probability that a court will include opinions are prior experience with the preliminary ruling procedure and if the case is politically sensitive. Moreover, the paper sheds light on how the high courts want to influence the domestic and EU legal systems by analyzing the content of the opinions. The results show that the final instance courts are more likely to express support for national legislation. In contrast, first instance courts are more likely to express opinions supporting EU law.