The Uneven Legal Push for Europe

Abstract

A B S T R A C TNational courts have been key players in the legal push for Europe, though notably to varying degrees. This paper examines the persisting variations in the referral rates of national courts and the underlying causal factors, aiming to better understand why some member states' courts have been more reluctant to join in the legal push for Europe. By using econometric methods, it challenges the modified neofunctionalist argument that the extent of intra-EC trade explains the referral practice of the individual member states.Majoritarian democracy is hypothesized as a causal factor in the low referral rates for some of the EU member states. Key characteristics of majoritarian democracy versus constitutional democracy are outlined and the former is further detailed by means of two case studies: Denmark and the UK. Finally, a panel data analysis is conducted and finds evidence of a negative impact of majoritarian democracy on the number of referrals. The paper concludes that, owing to the uneven legal push for Europe, some member states and their citizens remain at arms' length from the legal integration process -and, in consequence, from the full impact of European integration. 3

Of Courts and Commerce

“…This is a very demanding and we think unrealistic set of conditions. Second, the most recent rigorous statistical analysis of the effect of intra-EU trade on preliminary references by country-year (as in our study) does not find a lagged effect of intra-EU trade on references (Wind, Martinsen, and Rotger 2009), which is counter the hypothesized reciprocal effect.…”

“…16 Any observed trade effect related to the reference should appear after that national proceeding concludes, meaning the total lag for the effect of preliminary reference should be at least four years. Only two studies have examined such a lag length, and none have examined a longer delayed effect (Pitarkis and Tridimas 2003; Wind, Martinsen, and Rotger 2009). Fourth, these studies consider all preliminary references as relevant to trade.…”

“…In the ECJ literature, scholars using historical case studies to map out the evolution of case law over time find that the ECJ has been one of the critical engines driving the process of European economic and political integration (e.g., Burley and Mattli 1993). Some quantitative studies offer evidence of a positive relationship between ECJ preliminary references (but not rulings) and intra-EU trade (Stone Sweet and Brunell 1998), but the most recent study does not (Wind, Martinsen, and Rotger 2009).…”

“…reference system influences intra-EU trade (Fligstein and Stone Sweet 2002;Pitarakis and Tridimas 2003;Stone Sweet 2004;Stone Sweet and Brunell 1998;Wind, Martinsen, and Rotger 2009). These tests generally involve the following common features: they examine whether temporal change in total intra-EU trade covaries with temporal changes in the total number of preliminary references.…”

Perspectives on Europeanization of National Judiciaries: Old and New Questions

“…67 A similar mechanism of deeuropeanization was found by Wind, Martinsen and Pons in case of Denmark. 68 They discovered that an important reason for 'not making any (or very few) preliminary referrals was the discouragement from the state adviser. Moreover, 41.1 % of the judges in the lower courts stated that it is up to the High Court alone to decide whether or not a case ought to be referred to the CJEU.'…”