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Active or Passive: The National Judges' Expression of Opinions in the Preliminary Reference Procedure
Department of Government, Uppsala University, Uppsala, Sweden.ORCID iD: 0000-0002-3903-1344
2020 (English)In: European Papers, E-ISSN 2499-8249, Vol. 5, no 2, p. 871-886Article in journal (Refereed) Published
Abstract [en]

What motivates national judges to be either active in the preliminary reference procedure by expressing opinions in the requests they send to the Court of Justice or passive by not voicing their views? This Article sheds light on how national judges perceive the possibility of framing the cases they refer to the Court, for instance, by expressing an opinion in defence of the challenged national law. Based on interviews with Swedish judges, this Article shows that the respondents express opinions to provide the Court with information and to influence the development of EU law. The Article also uncovers what motivates national judges not to express opinions. These three previously untheorised motivations are: 1) protecting one’s reputation, 2) respecting the division of competences between the Court and national courts and 3) upholding the impartiality of the courts. Furthermore, the findings indicate that high court judges in particular are opposed to the inclusion of opinions in a request. In contrast, most of the interviewed lower court judges view the inclusion of opinions in the requests as practically mandatory. This Article proposes that this difference in attitudes towards opinions between high and low court judges originate from variations in professional norms regarding what constitutes appropriate behaviour.

Place, publisher, year, edition, pages
2020. Vol. 5, no 2, p. 871-886
Keywords [en]
preliminary reference procedure, national court opinion, Court of Justice, judicial dialogue, EU legal integration, active and passive courts
National Category
Political Science (excluding Public Administration Studies and Globalisation Studies)
Research subject
Political Science
Identifiers
URN: urn:nbn:se:liu:diva-209207DOI: 10.15166/2499-8249/416Scopus ID: 2-s2.0-85103307113OAI: oai:DiVA.org:liu-209207DiVA, id: diva2:1910993
Available from: 2024-11-06 Created: 2024-11-06 Last updated: 2025-05-12

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Leijon, Karin

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Citation style
  • apa
  • ieee
  • modern-language-association-8th-edition
  • vancouver
  • oxford
  • Other style
More styles
Language
  • de-DE
  • en-GB
  • en-US
  • fi-FI
  • nn-NO
  • nn-NB
  • sv-SE
  • Other locale
More languages
Output format
  • html
  • text
  • asciidoc
  • rtf