The preliminary reference dance between the CJEU and Dutch courts in the field of migration
European journal of legal studies, 2018, Vol. 10, pp. 101-154
KROMMENDIJK, Jasper, The preliminary reference dance between the CJEU and Dutch courts in the field of migration, European journal of legal studies, 2018, Vol. 10, pp. 101-154 - https://hdl.handle.net/1814/59867
Retrieved from Cadmus, EUI Research Repository
This article examines the relationship between national courts and the Court of Justice of the European Union (CJEU) based on a legal-empirical research consisting of interviews and a legal analysis of judgments. It empirically tests which factors shape (i) Dutch national courts’ motivations to refer a case to the CJEU, (ii) how the CJEU’s preliminary rulings are received and implemented by national courts, and (iii) the extent to which the reception of the CJEU’s preliminary ruling influences the national courts’ future decision to refer. This argument is presented through a case study in the field of migration law in the Netherlands (2013-2016). This article shows that earlier theories about judicial empowerment and bureaucratic politics, emphasising politico-strategic reasons for (non)referral, have a limited explanatory value in the context of migration. It is so despite the expectation that strategic reasons are particularly applicable in a highly Europeanised, judicialised and politicised field such as migration law. Judges primarily operate pragmatically when deciding to refer (or not) and when applying the requested CJEU judgments. Even though several national judges expressed criticism about the CJEU and some of its judgments, this has not affected them to such an extent that they felt discouraged from referring future cases or were reluctant to follow-up on CJEU judgments.
Cadmus permanent link: https://hdl.handle.net/1814/59867
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Publisher: European University Institute