Judicial Cooperation in the European Courts: Testing Three Models of Judicial Behavior

Global Jurist FrontiersVolume 2, Issue 1 2002 Article 4

Judicial Cooperation in the European Courts:Testing Three Models of Judicial Behavior

Francisco Ramos∗

∗New York University Law School, [email protected]

Copyright c©2002 by the authors. All rights reserved. No part of this publication may be re-produced, stored in a retrieval system, or transmitted, in any form or by any means, electronic,mechanical, photocopying, recording, or otherwise, without the prior written permission of thepublisher, bepress, which has been given certain exclusive rights by the author. Global JuristFrontiers is

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Judicial Cooperation in the European Courts:Testing Three Models of Judicial Behavior

Francisco Ramos

Abstract

Research on European legal integration has focused on the impact of the process of integrationon national courts and the impact of courts on the same process. Both lines of research, however,have positive theories of the functioning of judicial cooperation in the EC judicial system, whichoften times remain underspecified. The models used to account for it make different assumptionsas regards the preferences of judges, the structure of adjudication and render different explanationsof the practices of referral and precedent among courts. My aim here is to first elaborate on threesuch models –the legal model, the bureaucratic mode and the team model- and then proceed tosome empirical tests. I concentrate on the effects of hierarchy on judicial cooperation. Afterreviewing the evidence put forward by previous studies of legal integration and offering somenew evidence, I conclude that the practices of judicial cooperation seem to be explained by thepredictions of the team model. National courts take their role as “primary community courts”and use the ECJ as a guidepost to resolve complicated EC law issues. Moreover, higher courts inmember states do not seem to be more reluctant to cooperate with the ECJ than lower courts in theapplication of EC law. The results shed some light on some proposals to reform the EC judicialsystem.

KEYWORDS: european courts; judiciary; institutions; cooperation; adjudication


JUDICIAL COOPERATION IN THE EUROPEAN COURTS:

Testing Three Models of Judicial Behavior

By Francisco Ramos Romeu1

I. INTRODUCTION

In 1964, Mr. Flaminio Costa refused to pay an electricity bill for an amount of $3 and ended up challenging the validity of the nationalization of the Italian electricity company ENEL by a law of parliament in front of the giudice conciliatore di Milano. He argued that the law of the Italian parliament was against the EC Treaty. The court referred the case to the Italian Constitutional Court and the ECJ simultaneously. The first said that according to the principle lex posterior derogat priori, the act of parliament was valid and the nationalization of ENEL should thus stand.2 A few months later, the ECJ rendered its own decision affirming that EC law constituted a new and autonomous legal system and that national law could be invalid because of the Treaty.3 However, it left to the national court to consider whether in the particular circumstances national law was void. The giudice conciliatore, following the ECJ’s ruling and disregarding that of the Corte Costituzionale, examined the validity of the nationalization act under the Treaties and ultimately upheld it.4 In this case, a small claims court was confronted with two contradictory judgments on points of law and chose to go not with the national constitutional court, but rather with a newly created international court. The Italian Constitutional court’s decisions are deemed to be obligatory for other public officials but the ECJ had also announced that its rulings are obligatory on the referring court. Neither the ECJ nor the Italian Constitutional Court could further review the decision by the giudice conciliatore. The case certainly raises interesting legal questions, such as what was the “correct” legal analysis, but it also brings up many positive questions such as why did the national court refer the case to the ECJ and the Constitutional Court and why did it decide to follow one court instead of the other.

This case is not standing alone. Over fifty years of European integration, national judiciaries and the ECJ have come to integrate a unified judicial system and to cooperate in the interpretation and application of EC law. This judicial system is vertebrated through the mechanism of the preliminary ruling

1 J.S.D. Candidate, NYU School of Law. Acknowledgments are due to Oscar G. Chase, Lewis A. Kornhauser, Mattias Kumm and the participants of the NYU J.S.D. Colloquium. 2 Corte Costituzionale, Costa v. ENEL, 7 March 1964, n. 14, Foro Italiano [1964] I, 465. 3 Case 6/64, Costa v. ENEL [1964] E.C.R. 1141. 4 MARY L. VOLCANSEK, JUDICIAL POLITICS IN EUROPE. AN IMPACT ANALYSIS (Peter Lang 1986) at 135.

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Ramos: Judicial Cooperation in the European Courts


that allows any national court, which, in the course of regular proceedings, faces an issue of EC law to question the ECJ on its correct interpretation and application.5 Judicial cooperation, either in the form of referrals from national courts to the ECJ or through national court’s application of ECJ decisions, is part of the daily bread of EC law adjudication. But legal scholars and political scientists have come up with very different conclusions about the structure of judicial cooperation in the European court system. For many lawyers, the giudice conciliatore in the case above faced a difficult legal issue raised by one party and given the fact that due to the amount in controversy there was no possibility of appeal, the judge had the obligation to refer the case to the ECJ. Similarly, since an Italian ordinary judge cannot declare laws passed by parliament unconstitutional, the giudice also referred the case to the Italian Constitutional Court, which has jurisdiction to do so. With the decisions of both courts in her hands, the judge applied the ECJ’s judgment for its decisions are obligatory for national public officials, even if they conflict with national laws. It is certainly true that, to some extent, the obligations of the court were controvertible, but the judge tried to come up with the best application of the law he could and the rest should be blamed on the legislators. For others, the story is much more politicized and savory. On the one hand, at the lower levels of the Italian judicial hierarchy, the giudice conciliatore was more than happy to attract the attention of the legal community by making a reference challenging the nationalization of ENEL.6 On the other hand, “the Italian Constitutional Court understood equally well that its prerogative of exclusive constitutional review was in jeopardy and sought to supervise the application of EC law in the face of contrary national legislation by the lower courts”.7 The giudice went with the ECJ because that decision implied that he could engage in judicial review of national legislation, “heady stuff”.8

These two stories of national judiciaries embody very different assumptions about judicial behavior and about the relations among courts. My aim here is to elaborate theoretically on the explanations of judicial behavior that those two stories suggest and assess empirically the extent to which judicial cooperation

5 The mechanism is regulated in art 234 (ex 177) of the EC Treaty which goes as follows: “The Court of Justice shall have jurisdiction to give preliminary rulings concerning:

a. the interpretation of this Treaty; b. the validity and interpretation of acts of the institutions of the Community and of the

ECB; c. the interpretation of the statutes of bodies established by an act of the Council, where

those statutes so provide. When such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon. When any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice.” 6 Walter Mattli & Anne-Marie Slaughter, The Role of National Courts in the Process of European Integration: Accounting for Judicial Preferences and Constraints, in THE EUROPEAN COURT AND NATIONAL COURTS – DOCTRINE AND JURISPRUDENCE, LEGAL CHANGE IN ITS SOCIAL CONTEXT, (Anne-Marie Slaughter, Alec Stone Sweet & J.H.H. Weiler eds., Hart Publishing 1998) at 260. 7 Id. 8 Joseph H.H. Weiler, The Transformation of Europe, 100 YALE L.J. 2403, 2426 (1991).

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Global Jurist Frontiers , Vol. 2 [2002], Iss. 1, Art. 4


within the EC court system is explained by the rules governing judicial practices or whether it results from the strategic interaction of public officials in the pursuit of institutional power competing against each other. Moving beyond those two stories that one can find in the literature on European integration, I will also offer and test an alternative model of judicial cooperation drawn from the economic analysis literature in which adjudication is a collective enterprise in which judges try to solve problems of coordination and administration of justice. Certainly, adjudication and legal integration involve many practices and have a variety of facets, but I focus here only on referral and precedential practices as a means of learning more about national judiciaries. Moreover, among all dimensions over which judicial cooperation may vary, I focus here on variations along judicial hierarchies. This is, I am studying the effects of hierarchy on judicial cooperation.9

By elaborating on the theory of judicial cooperation and the effects of hierarchy, the paper tries to answer incognita posed by the present reform agenda of the EC judicial system. Under all best lights, the ECJ’s capacity to deal with its caseload is in doubt, the referral process taking over 21 months in the latest statistics.10 This that has been called the paradox of success11 has generated a debate over possible reforms. One of the proposals on the table is to limit the possibility to refer to high courts in member states. Some scholars believe that this would have dramatic consequences on legal integration since lower courts are the motors of the system.12 I argue here that the evidence does not suggest that lower courts are crucial in ensuring the effectiveness of the EC legal system. While it would be desirable that lower courts be able to refer because this allows some new issues to be readily addressed without further delay, all else equal, this is, if for example no more resources can be devoted to adjudication at the ECJ level, then limiting the preliminary reference mechanism to high courts is an alternative to consider.

The plan of study is the following: In part II, I will first present the three theoretical models that try to account for the practices involved in judicial cooperation within the EC judicial system -the legal model, the bureaucratic model and the team model- and then highlight their strengths and weaknesses as they are applied to the EC. The rest of the sections will be devoted to the empirical testing of the theories as applied to three decisions that judges make: the decision to refer (Part III), what to refer (Part IV) and to use precedent (Part V). I both review the empirical literature on the matter and offer some new evidence. I suggest that neither the legalist nor the bureaucratic model

9 However, it will be necessary sometimes to address aspects that go beyond the effects of hierarchy. But I will try to stay focused. 10 See Court of Justice of the European Communities, Statistics of Judicial Activity of the Court of Justice in 2000, (visited Mar. 31st, 2002) <http://www.curia.eu.int/en/stat/st00cr.pdf>. 11 Joseph H. H. Weiler, The European Court, National Courts and References for Preliminary Ruling – The Paradox of Success: A Revisionist View of Article 177 EEC, in ARTICLE 177 EEC: EXPERIENCES AND PROBLEMS (Henry G. Schermers, Christiaan W.A. Timmermans, Alfred E. Kellermann, J. Steward Watson eds., North-Holland 1987) at 366, 368-371. 12 For example, among others, see G. Bebr, The Preliminary Proceedings of Article 177 EEC – Problems and Suggestions for Improvement, in ARTICLE 177 EEC: EXPERIENCES AND PROBLEMS, supra note 11, at 354-455.

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successfully account for the phenomena that one can observe, which fit better the predictions of the team model. I will end with some remarks.

II. THREE MODELS OF JUDICIAL COOPERATION

I develop here three models of judicial cooperation. In the legal model, judges are conscientious public officials that try to meet their obligations as much as possible. In the bureaucratic model, judges compete against each other in the promotion of their institutional power and they face problems of agency and strategy. I use Alter as an example of this type of theory.13 And I propose here a third model elaborated by Kornhauser where judges act like a team because they share a common goal and they face problems of coordination and division of labor.

For each model, I review what the preferences of actors are, how social practices –referral and precedential practices- are explained and then try to derive some hypotheses as to the expected phenomena one will observe. There are some basic phenomena that I focus on here: the distribution of reference rates across judicial hierarchies, the inclusion of preliminary opinions in references14, the importance of references and citations/compliance with ECJ decisions. As one can see, the discrepancies start at the level of the assumptions that are made as to the behavior of judges. From here, phenomena are explained differently. This investigation tries to learn more about those assumptions by looking at the visible phenomena.

A. The Legal Model

Legal attitudinalism tries to explain the behavior of judges by recurring to the rules that regulate it. The substance of cases is governed by substantive rules, procedures by rules of procedure. This is the logic that underlies most legal-dogmatic analysis and it makes particular assumptions as regards the preferences of courts and gives particular explanations of referrals and precedent.15

13 Alter also calls her model the “inter-court competition model”. Many scholars have incorporated in some way Alter’s theory into their analysis. See, for example, RENAUD DEHOUSSE, THE EUROPEAN COURT OF JUSTICE. THE POLITICS OF JUDICIAL INTEGRATION (St. Martin’s Press 1998) at 141; MATTLI & SLAUGHTER [98], supra note 6, at 261-262. 14 This is, an opinion by the national judge as to how the ECJ should decide the case. I will return to this later. 15 The literature on European integration usually calls this approach legalism. Alter defines it as the approach that “explain[s] judicial behavior in legal integration based on legal logic and legal reasoning.” Karen J. Alter, Explaining National Court Acceptance of European Court Jurisprudence: A Critical Evaluation of Theories of Legal Integration, in THE EUROPEAN COURT AND NATIONAL COURTS –DOCTRINE AND JURISPRUDENCE. LEGAL CHANGE IN ITS SOCIAL CONTEXT, supra note 6, at 230. Burley (Slaughter) and Mattli say that it is “an approach to the study of the ECJ that denies the existence of ideological and sociopolitical influences on the Court’s [ECJ] jurisdiction.” Anne-Marie Burley & Walter Mattli, Europe Before the Court: A Political Theory of Legal Integration, 47 INTERNATIONAL ORGANIZATION 41, 45 (1993). Weiler calls it formalism, “the per se compliance pull of a dialogue conducted between courts in legalese.” Joseph H.H. Weiler, A Quiet Revolution. The European Court of Justice and Its Interlocutors, 26(4) COMPARATIVE POLITICAL STUDIES 510, 520-21 (1994). The common threat of all this is that the answer to the explanation of judicial behavior has to be found in rules and doctrine.

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1. The Preferences of Judges

The preferences of judges are determined by the contents of legal rules. The option to choose in a particular case is determined by what the rule says and when it comes to practices such as references and precedent, the relevant rules are the rules of procedure. Thus, in many circumstances judges have the obligation to comply with the decisions of another court in the resolution of other cases, as with the decisions of Constitutional Courts, or they have the obligation to defer the case to another body for resolution of an issue, for example, when a civil court finds indicia of criminal activity and it has to defer the case to a criminal court.

Moreover, judges tend to be conscientious and prefer to adhere to rules. Rules in themselves constitute exclusionary reasons for action and, to the extent that the judge does not care about the consequences of its actions, the model adopts a form of attitudinalism.16 Thus of its name. So, for example, the rule of stare decisis requires that the judge adhere to the outcome of a previous decision regardless of whether she thinks it is wrong.17

2. Explanation of Referrals and Precedent

The explanation of the practices of referral and precedent between the ECJ and national courts are basically attitudinal and depend on whether there are rules that govern those practices and what those rules say.18 Moreover, that the rules say there is an obligation to refer or to comply is a sufficient condition for a court to do so. But the necessity and sufficiency of those strict conditions can be moderated.

Courts make references for a preliminary ruling to the ECJ because they have an obligation to refer. Those obligations either derive from the Treaty itself or from the case law of the European court. An example of the first situation is the obligation of courts from which there is no appeal to refer and an example of the second is the obligation of all courts to refer issues of validity of EC law. Similarly, precedential practices as regards ECJ decisions result from the obligation of courts to adhere to those decisions.19

16 The attitudinal model is usually couched with a policy-motivated account of the preferences of judges as in the American political science literature on the U.S. Supreme Court. So for Segal and Spaeth, a court “decides disputes in light of the facts of the case vis-à-vis the ideological attitudes and values of the [judges].” JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL (Cambridge University Press 1993) at 65. 17 Lewis A. Kornhauser, An Economic Perspective on Stare Decisis, 65 CHICAGO-KENT L. REV. 63, 66 (1989). 18 Examples of legalist explanations of the relations between the ECJ and national courts from a social science perspective can be found in PRIMUS INTER PARES: THE EUROPEAN COURT AND NATIONAL COURTS. THE FOLLOW-UP BY NATIONAL COURTS OF PRELIMINARY RULINGS EX ART. 177 OF THE TREATY OF ROME: A REPORT ON THE SITUATION IN THE NETHERLANDS, (Joest Korte ed., Nomos Verlagsgesellschaft 1991). 19 I disregard here the circularity of the fact that the ECJ has said that its decisions are obligatory in some cases.

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However, the legal attitudinal model does not automatically entail that obligations are necessary and sufficient. It can also accommodate variations in the behavior of courts beyond rules. This occurs for example when obligations are controversial or underspecified and also when conscientious public officials are incompetent.20 So, for example, the obligation to follow ECJ decisions may conflict with the obligation of stare decisis. And national courts may fail to refer a case because they are unaware of the applicability of EC law.

All this suggests that the attitudinal model is not necessarily a naïve understanding of the practices of referral and precedent and it can formulate a rich theory of the behavior of judges.

3. Hypotheses

The legal model generates hypothesis as to the observed phenomena based on the legal order in place. Referrals and precedential practices among courts in judicial hierarchies vary depending on the obligations that attach to the institutional position of courts, the status of those obligations and also probably on the competence of judges.

A legalist would expect high courts to make lots of references based on their obligation to refer included in the Treaty. It would probably expect lower courts to make some references to the extent that the ECJ has said that questions of validity of EC law have to be referred obligatorily by all courts. Moreover, since sometimes there is no appeal to decisions by lower courts as a matter of national procedure, lower courts would also sometimes make references. But overall, higher courts should be cooperating more with the ECJ compared to lower courts. Moreover, the legal model predicts that high courts will meet their obligation to refer and one should expect little departure from the type of behavior mandated by that rule.

As to the contents of the references, there are little rules to guide the legalist model. Preliminary opinions of judges in references are not a practice governed by express rules so that one should not expect judges to make lots of them. As regards the importance of the references made, a legalist would probably expect that judicial cooperation would be most important from higher courts. This is so because higher courts hear more important cases than other courts in a legal system, because they have an obligation to refer, and because their judges are the most competent.

Finally, as regards precedential practices, a legalist would expect to find patterns of compliance among national courts. This would confirm that national courts take ECJ decisions as obligatory, which results from several legal sources.21 Compliance rates with ECJ decisions should thus be high. But the

20 On this, see Lewis A. Kornhauser, A World Appart? An Essay on the Autonomy of Law, 78 B. U. L. REV. 747, 752-53 (1998). 21 These may vary. For some, there is the fact that some legal systems acknowledge an obligation of stare decisis. For others, there are specific rules that command compliance with ECJ decisions.

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legalist would not expect compliance patterns to vary with the position of the court in the judicial hierarchy since the decisions of the ECJ are equally obligatory for all national public officials.

In conclusion, the legal model makes some claims as regards patterns of judicial cooperation. A legalist expects high courts to comply with their obligation to refer, to make more references than lower courts and in general expects them to make important references. Judges will not necessarily include preliminary opinions in their references since there is no obligation to do so. The legal model also predicts a great degree of compliance with ECJ decisions while not necessarily variations across the judicial hierarchy.22

B. The Bureaucratic Model

“The judiciary is not an epistemic community. It is a bureaucracy. Within the judicial bureaucracy, as in all bureaucracies, there are differences of opinion. There are also bureaucratic rivalries based on the institutional position of the actors involved. Appeals to, and opposition to, European law can be a tool wielded in bureaucratic politics.”23 Alter has been the major proponent of the bureaucratic model for which she assumes that each judge tries to promote her institutional position and explains references and precedent as a result of strategic behavior.24


Alter starts by saying that most judicial behavior can be explained by what she calls its “institutional interests”.25 “Judges are primarily interested in promoting their independence, influence, and authority. By independence, I mean that courts want to protect their legal autonomy from political bodies. […] By influence, I mean that courts want to promote their ability to make decisions that can influence the policy process and the judicial process. […] By authority, I mean that judges protect their legal turf (their jurisdiction) and the finality of their decisions.”26 Alter offers some examples of what she means. For example, “the ECJ’s interest in the supremacy and direct effect of EC law was clear. […] The ECJ had more opportunities to rule on national law and to expand the

And there is also the fact that the ECJ has said that rulings on validity and rulings on remand from a referral are obligatory for a national court. 22 The context sensitivity of the legal model –sensitive to the existence of rules or obligations that attach to particularized circumstances of courts- makes it difficult to elaborate more on the expected behavior of judges. 23 KAREN J. ALTER, ESTABLISHING THE SUPREMACY OF EUROPEAN LAW. THE MAKING OF AN INTERNATIONAL RULE OF LAW IN EUROPE (Oxford University Press 2001) at 47. 24 Alter’s theory is similar to the judicial empowerment thesis developed by WEILER [91] and MATTLI & SLAUGHTER [98] to explain the acceptance of the doctrines of direct effect and supremacy. That thesis also relies on the institutional position/power of courts: courts that do not exercise the power of judicial review have more incentives to accept the supremacy of EC law than other courts. This explanation though is rather geared to variations of practices between ordinary courts-constitutional courts or courts in different legal systems based on the constitutional relations with other branches of governments. The focus here in rather on variations in hierarchies. 25 ALTER [01], supra note 23, at 45. 26 Id.

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reach and scope of its jurisprudence, and thereby expand its own jurisdictional authority and influence in the policy-making process.”27 Similarly, national judges also had an interest in using EC law because “courts can use EC law to get to policy outcomes which they prefer, either for policy or legal reasons.”28

As the bureaucratic model attributes to each court its institutional interest, this results in that each court has in fact interests different from those of other courts. Alter says “Different courts have different interests vis-à-vis EC law, and that national courts use EC law in bureaucratic struggles between levels of the judiciary and between the judiciary and political bodies, thereby inadvertently facilitating the process of legal integration.”29 The ECJ and national courts and national courts among themselves have different goals and the process of integration is, in the best of the cases, a subproduct.


Alter offers a strategic account of the behavior of courts: “Courts act strategically vis-à-vis other courts, and vis-à-vis political bodies, calculating the political context in which they operate so as to avoid provoking a response which will close access, remove jurisdictional authority, or reverse their decisions.”30 Thus, the practices of referral and precedent between the ECJ and national courts are a result of strategy but the logic is somewhat different depending on the type of court.

As regards the preliminary reference, lower courts can use it “to circumvent the restrictive jurisprudence of higher courts, and to re-open legal debates which had been closed, and thus to try for legal outcomes of their preference for policy or legal reasons.”31 Higher courts refer either because by making a referral they can “deflect criticism” when they make decisions that other branches of government are not likely to like or because they seek “to avoid having lower courts circumvent them by making a referral themselves”.32 Simply put, in the first case, higher courts refer under the threat of review of other branches of government and, in the second case, under the threat of referral of lower courts.

Precedential practices are no different. Courts also cite and comply with ECJ decisions strategically: For lower courts, “having the court’s [ECJ] approval decreased the likelihood of sanctions for challenging legal precedence or government policy.”33 At the same time, “high courts freely accepted ECJ

27 Karen J. Alter, The European Court’s Political Power, 19(3) WEST EUROPEAN POLITICS 458, 3 (1996). 28 ALTER [98], supra note 15, at 242. 29 Id. at 241. 30 ALTER [01], supra note 23, at 46. To be sure, Alter claims that “national courts do not always have strategic calculations in mind in deciding whether to refer a case or to apply ECJ jurisprudence” but “competing interests do arise […] when there is significant disagreement about interpretations, and when there is a threat to a court’s influence, independence, and authority.” ALTER [01], supra note 23, at 51. 31 ALTER [96], supra note 27, at 8. 32 Id. at 7. 33 Id. at 8.

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jurisprudence so far as it did not encroach on their own authority”34 and they would use them against other branches of government. Weiler also has suggested that “holding out against accepting a new doctrine when other similar positioned courts have committed themselves might be seen to compromise the professional pride and prestige of the recalcitrant court.”35 This is, national courts can cite and use ECJ decisions to legitimize in law policy outcomes that have no space in national legal rules to avoid being reversed or criticized by other actors.

3. Hypotheses

The bureaucratic logic, for Alter, produces several hypotheses about the expected usage of the preliminary reference mechanism and compliance patterns by national courts. She builds them on the different institutional position of courts in the judicial hierarchy. “The impact of European law on a given national court varies according to the court’s institutional position in the national legal hierarchy and to the extent to which a court’s substantive jurisdiction is influenced by European law.”36

Alter expects that high courts will, on average, be reluctant to cooperate with the ECJ because doing so would undermine their position of preeminence within the national legal system.37 High courts have traditionally enjoyed a position of power, posted at the top of the judicial hierarchy, reviewing decision of lower courts, and pontificating on the correct solution to legal controversies. However, they will cooperate with the ECJ or they will apply EC law to pursue their own political battles against other branches of government and other courts.38 All in all, this means that higher courts will make fewer references than other courts, make technical and unimportant references and be less likely to cite or comply with ECJ decisions.

34 Id. at 9. 35 WEILER [94], supra note 15, at 522. One aspect of Weiler’s claim is definitely fit to the bureaucratic model. But another aspect of it is different. He also says that “one reason why national courts […] might have been tempted to resist the double acceptance [direct effect and supremacy] could perhaps be the fear that they would be disadvantaging their national legal system and their governments in their dealings with other member states. […] Courts have been sensitive to this issue in the international law field. […] Thus, when national courts are satisfied that they are part of a trend, their own acceptance is facilitated.” WEILER [94] at 521-522. This explanation is different from the claims of the bureaucratic model in the characterization of the preferences of judges. Judges here care about what is in the “interest of the country”. For this reason, they will be strategic in their precedential practices. But if this is the best understanding of the preferences of judges, then it fails to explain the current equilibrium in which all courts accept the supremacy and direct effect of EC law. Once a country has accepted to open its borders, which results from the supremacy of EC law for example, it is in the “interest” of another country to maintain them because it can benefit of the other countries’ markets while preserving its own from competition. Choosing cooperation for both courts is not an equilibrium in the prisoner’s dilemma game. Unless there is some external mechanism that alters the incentives. Which is precisely the role of the judiciary in a federation. But national courts are this judiciary. They cannot be the problem and the solution at the same time. 36 ALTER [01], supra note 23, at 48. 37 ALTER [96], supra note 27, at 6. VOLCANSEK, supra note 4, at 263. 38 Id. at 7.

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On the contrary, lower courts will, on average, be more receptive and willing to cooperate with the ECJ. Cooperating with the ECJ allows them to create new lines of case law, it allows them to enhance their visibility among national academics and lawyers, and following the ECJ makes a reversal of their decisions less likely.39 However, they will not cooperate with the ECJ, and will rather follow their national courts, when this allows them to reach their preferred policy outcomes. In general then, lower courts will make more references than higher courts, send bold and provocative questions, and cite and follow the ECJ relatively more than higher courts.

In conclusion, Alter’s theory seems to yield a hypothesis that enshrines the idea that power differentials among courts can explain practices of precedent and referrals: high courts will show a reluctance to cooperate with the ECJ in comparison to lower courts in the hierarchy. This prediction implies something about the development of EC law and legal integration: lower courts will be the motors of legal integration.40

C. The Team Model

Kornhauser has used a team model to understand adjudicatory practices.41 It draws from the institutional position of judges to posit that they share the common goal of maximizing the number of correct decisions given their resource constraints. The model says that courts in different levels of the hierarchy have different functions and most of the problems of courts consist of designing adequate adjudicatory strategies given the cases they hear.


The team model makes very different assumptions about the preferences of judges in comparison to the legal or the bureaucratic models. Judges are like members of a team in that they have a common goal, not conflicting interests. I characterize this goal in the context of adjudication as the goal of maximizing the number of correct decisions. Two comments are worth noting as to what this assumption does not entail and what it does.42

On the one hand, this is an organizational goal that can be distinguished from the substantive goals of judges, for example, to promote justice. Policy motivated accounts of judicial behavior are an example of a model that is built around these substantive goals: each judge tries to promote justice as he sees it. It would also be possible to characterize this substantive goal as a matter of judgment rendition, this is, as if judges were trying to make the best possible judgment. The organizational goal can accommodate both these types of

39 Id. at 8. 40 Id. at 9. 41 Lewis A. Kornhauser, Adjudication by a Resource-Constrained Team: Hierarchy and Precedent in a Judicial System, 68 S. CAL. L. REV. 1605 (1995). Kornhauser’s purpose in the article is basically normative. But since he takes an internal perspective on adjudication it is easily turned into a positive theory if the assumptions as to preferences of actors and the structure of adjudication hold. 42 Id. at 1612-1613.

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substantive goals but does not depend on them. For example, courts could be trying to minimize the number of road accidents or maximizing the fairness of administrative procedures, but organizationally, the goal would remain the same.

On the other hand, this organizational goal does determine in part that judges share a conception of “correctness”. This is, judges have a bottom-line agreement about what counts as a correct decision that is promoting the substantive goals that the judiciary may pursue. This common core is normally given by doctrine and the doctrinal structure under which adjudication takes place. This turns the problems they face into problems of coordination and division of labor, rather than problems of competition. How thin this conception of “correctness” can be is debatable.


Referral and precedential practices in the team model between the ECJ and national courts are a sort of decision rule adopted by judges to maximize the number of correct decisions. The ECJ on this account is a specialized court in that it has a particular type of ability: the investment of resources by this court yields better signals as to how EC law cases should be decided.43

Precedential practices result from judges deferring in the decision of instant cases to the knowledge embodied in previously decided cases. The reasons of the national judge for deferring to ECJ precedent are twofold. First, the national judge knows that the ECJ, as a specialized court, produces better signals than hers by investing the same amount of resources. Second, the national judge can save the resources that would have had to be invested in the deliberation of that case and can now redirect them to the resolution of other cases.

Referral practices outsource the production of knowledge necessary to resolve EC law cases. Outsourcing is desirable when actors within an organization face problems that only appear infrequently and thus for which it makes no sense that someone within the organization develop the knowledge necessary to confront them.44 National judges participate in the decision of EC law cases, use precedent for that and, when no precedent exists, they can decide to generate the knowledge necessary to deal with them. When the ECJ hands down a decision, the national judge complies with it because she knows that the ECJ produces a comparatively better signal than she could. To reconsider the case would be to spend more resources without efficiently improving the quality of the decision.

3. Hypotheses

The team model generates some hypothesis as to the patterns of referral practices, the contents of the referrals and the precedential practices that one 43 Id. fn. 28 considers a situation similar to the present one and calls that institution a legislature. 44 Luis Garicano, Hierarchies and the Organization of Knowledge in Production, 108(5) JOURNAL OF POLITICAL ECONOMY 874, 26 (2000).

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should expect based on the division of labor of courts in judicial hierarchies. Judges in the lower parts of the hierarchy tend to specialize in the resolution of the problems that are most common to them and defer to other judges as regards more complex issues. This establishes a division of labor among levels of courts.45

After gathering the facts, if a trial court faces an issue of EC law, it will normally defer to precedent on the matter. Engaging in law-finding is costly and given that it has limited resources and has to hear many other cases, a practice of precedent is optimal to maximize the number of correct decisions. Moreover, making a reference is costly because the judge must prepare it, explain the facts and point to the legal issues. It is an activity that would require her to invest resources in law-finding that go beyond the scope of her ordinary tasks. For this reasons, she will give answers to EC law issues in the best knowledge that is available and defers to higher courts whether it is necessary to generate new knowledge to deal with an issue. As one moves to the appellate level, the logic is similar but now it turns on the economics of dealing with legal issues. Appellate courts are courts that engage in the resolution of legal issues and this is where most issues are finally settled. This is why dealing with EC law issues is part of their main role and using the preliminary reference an important mechanism to consider. Still appellate courts mostly engage in the working out of the basic doctrinal structure established by the higher courts. There are some issues that will be deferred to an appeal. Apart from that, appellate courts will not refer all cases. They will refer only especially complicated issues. From this practice, divergences may occur among appellate courts and this is why one may find issues unresolved at higher levels. Turning to higher courts, their practices of referral are still driven by the goal of maximizing correct decisions but there are further considerations. In the regulation of the preliminary reference mechanism, courts from which there is no appeal have the obligation to refer issues of EC law that are necessary to resolve the case. In the context of the judicial organizational structure, this obligation plays a role in the deliberation of the court as to the strength it has to attribute to its referral practices. But of course this obligation has to be understood in the light of the organizational goal of maximizing correct decisions and there are several circumstances in which following that obligation strictly would not advance that goal.46 Still, higher courts will tend to make more references than any other court in the hierarchy.47

As regards the contents of references, the team model predicts that the importance of the issues referred will not vary substantially across levels of the judicial hierarchy. On the one hand, the higher one goes up in the hierarchy, the more difficult the questions become because lower courts resolve easier

45 Typically, among trial courts and appellate courts, lower courts specialize in fact-finding and appellate courts in law-finding. 46 There is already precedent on the matter is the typical example. Re-referring an issue that has already been decided would waste the resources of the referring court, which has to prepare the reference, and the ECJ, which has to process it and answer it. This is why referral practices cannot be understood without precedential practices. 47 Higher courts are always the courts of last instance, while other courts are only courts of last instance in some cases.

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problems and leave the resolution of more difficult problems for other courts on appeal. One would thus expect to find that the docket of high courts is composed of difficult cases and when higher courts make references, those should bear on important questions. On the other hand, lower courts will make references when the issue is completely new and new issues tend to be interesting for other actors, lawyers and doctrine. Thus, all courts are bound to make important references but for different reasons: lower courts will make important references of new issues48 and higher courts will make important references of difficult issues.49

Precedential patterns should not be tied to the institutional position of the court either, at least generally. But to the extent to higher courts in national judicial hierarchies are better equipped to deal with complicated issues, one expects those courts to be somewhat less inclined to defer to the decisions of another court and more willing to engage in the resolution of complicated legal issues. That is part of their job. Apart from that, precedential practices are going to be driven by the need to solve complicated issues. Falling short of a strict obligation of stare decisis, national courts will defer to the ECJ in the resolution of particularly difficult points. In general, they will take up the task of applying EC law and rendering decisions as to what EC law requires themselves. They are “primary community judges”.

In conclusion, the team model allows us to make claims as regards the tendency of judges to refer, the contents of those references and compliance patterns. It predicts that lower court judges will tend to make fewer references than higher courts. It also envisages that the importance of the issues referred for other actors will not vary across levels of the judiciary. In some sense, all references are important and worth referring, otherwise they would not have been referred by judges. Finally, one will observe precedential practices driven by the need to solve complicated legal issues but those will not vary with the position of the court in the hierarchy.

D. Some Theoretical Critiques

In this subsection, I take on some critiques and weaknesses of the models above as they are applied to the explanation of judicial cooperation in the EC judicial system and national legal systems. I focus on some theoretical objections and leave the empirics for later. Broadly speaking, the critiques bear on the degree to which the models capture the most relevant aspects of the realworld of adjudication of EC law cases, or the intuitions one might have about it.

1. Legal Attitudinalism Revisited

Legal attitudinalism faces the challenge of reducing the legal regime to the legal order; this is, of explaining all behavior in terms of norms.50 While the ideas of controversy, underspecification and incompetence seem to capture important 48 New issues are difficult in that they are new. 49 The team model may also say something about preliminary opinions in references but I will leave this to after the examination of the evidence. 50 On the idea of reduction as applied to law see KORNHAUSER [98], supra note 20, at 749.

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nuances in the application of the model, some features of the EC legal system seem to bring the endeavor to a halt.

The first problem of legal attitudinalism is the preliminary reference mechanism itself. As it turns out, the express rules governing the use of the preliminary reference mechanism were and are very scant. Art. 234 (ex 177) of the EC Treaty is mostly an enabling device. That judges have been using it because they are allowed to of course fails to explain why sometimes they use it and other times they do not.

In the EC legal system, moreover, the legal status of the decisions of the ECJ was and remains controversial. While legal scholarship has debated whether ECJ decisions are binding, the ECJ itself has not announced a general obligation of stare decisis, but rather has carved some concrete rules such as the obligation of the referring court to comply with the ruling received51 or the obligation to comply with decisions on the validity of EC legal instruments.52 To be sure, ECJ decisions are generally obligatory in some countries.53 But beyond those cases, it remains unclear how the legal model explains precedential practices in the adjudication of EC law cases.

From this problem of the status of ECJ decisions derive a long series of issues as regards many obligations under EC law exclusively elaborated by the ECJ. Paradigmatically, here one thinks of the doctrines of direct effect and supremacy, which are not expressly written in the Treaties. Negating precedential value to ECJ decisions deprives the doctrines elaborated by that court from any obligatory nature, unless courts could find those obligations in the Treaties themselves.

Finally, most European countries come from a civil law tradition where there is no general rule of stare decisis. This does not mean that judges have not been citing one another. Precedential practices do exist, but the present state of those phenomena is not already captured by a purely legalist model.

2. The Problems of the Bureaucratic Model

In the bureaucratic model, variations in adjudicatory practices are driven by the institutional setting in which judicial behavior occurs. But Alter many times forgets to incorporate the institutional environment in which judges move and other times fails to explain how some elements are introduced.

Alter applies her theory of “institutional interests” ambivalently to judges and courts. Most of the time, she conflates individual judges with courts, and never explains how a judge resolves the conflict between promoting a particular policy and safeguarding the “institutional power” that the court in which she sits needs. She also clearly forgets that many courts are collegial bodies and this necessarily entails that much strategic interaction must be going on within 51 Case 29/68, Milch-, Fett-, und Eierkontor [1969] E.C.R. 165. 52 Case 66/80, International Chemical Corporation v. Administrazione delle Finanze dello Stato [1981] E.C.R. 1191. 53 Section 3(1) of the 1972 European Communities Act, the UK act of accession, so mandates.

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courts. And this should have effects on the observable functioning of the institution.

The explanation of strategic interaction among levels of the judicial hierarchy also faces some problems. On the one hand, the threat of review by high courts would make lower courts be more responsive to higher courts than Alter thinks. To believe that merely making a reference “insulates” the lower court decision from reversal by a higher court, if policy preferences is what counts, is ingenuous and amounts to a weak rationalization of the practice of referral in that adjudicatory model. Alter claims that high courts lost control of lower courts, but never explains why. On the other hand, the source of strategy could maybe be different: many judiciaries in member states are composed of career judges that progress up in the hierarchy by cooptation from other judges in higher courts. This institutional feature suggests that lower judges should be deferential or strategic as regards higher judges, but this is completely out the picture.

The sources of strategic behavior for high courts do not fare any better. On the one hand, that high courts refer under the threat of referral by lower courts forgets that the decision of a lower court to refer could be quashed on appeal. Certainly, the ECJ in some of its early decisions said that it would entertain a reference that had been made regardless of what happened in the national context to that appeal.54 But then practices differed in national legal systems: some national high courts said they would review decisions to refer while others said they would not.55 And finally the ECJ changed that case law and established the rule that it would entertain a request so long as the request had not been withdrawn or quashed on appeal.56 How does the bureaucratic model account for those developments? On the other hand, how high courts are playing against other branches of government is unclear. Higher courts need not make references to avoid being reviewed or overruled by national legislation since EC law is superior to national law and that is in the judiciary’s hand to control.

3. The Weaknesses of the Team Model

The team model also faces some problems as one tries to apply it to the EC judicial system. Some of its basic assumptions seem to fly in the face of deep-seated beliefs. I will nevertheless sketch some answers as to how these objections may be answered.

The team model assumes that judges share common goal and for this reason it seems to fail to incorporate political conflict into the model, which certainly existed in the EC. Similarly, that judges share a conception of correctness in the context of the EC strikes as implausible. If anything, the problems regarding the doctrines of direct effect and supremacy showed how fundamental the divergences as to the meaning of correct could be. This emphasis on substance 54 Case 13/61, De Geus en Uitdenbogerd v. Bosch and Van Rijn, [1962] E.C.R. 45. 55 HENRY G SCHERMERS & DENIS F. WAELBROECK, JUDICIAL PROTECTION IN THE EUROPEAN COMMUNITIES(Kluwer Publishers 1992) at 438. 56 Case 106/77, Administrazione delle Finanze dello Stato v. Simmenthal [1978] E.C.R. 629.

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that seems so natural for lawyers and political scientists is in fact one of the reasons behind the move of the team model from substance to organization. That the administration of justice is more about “administration” than “justice” seems to be the neglected part of the study of judicial behavior. And even more so in European judiciaries, which are more like bureaucracies in the Weberian sense. The models are not necessarily inconsistent, but rather probably explain different aspects of judicial behavior. Apart from that, part of the analysis bears on how national courts cooperate among themselves in the resolution of disputes and this is the context in which the team model can surely shed some light. And finally, there are reasons to believe that beyond the divergences of initial years, adjudication in the European context has become more like a team enterprise.

Then again it seems that, in the team model, judges are assumed to be relatively aware of the decisions of other courts, in particular ECJ decisions and higher courts. It would seem that this would go against the classical view of civil law systems, especially, taking into account that the technology of reporting decisions was and is less than perfect. This criticism disregards the fact that there are precedential practices among courts in civil law systems which, falling short of an obligatory nature, are in need of an explanation. The fact that there is no obligation of stare decisis makes courts less aware and less used to the usage of decisions of other courts. This will certainly result in divergences among and within countries. This criticism is a matter of degree within the theoretical range of the team model.

E. Summary and Conclusion

The legal, bureaucratic and team models make very different assumptions as regards the preferences of judges and the explanations of referral and precedential practices. In the first, each judge is a conscientious public official that tries to meet her obligations. Precedent and references are a matter of the rules that govern those practices. In the second, each judge tries to promote her institutional power and judges compete against each other. Precedent and references are a matter of strategic behavior among courts. In the third, judges share the goal of promoting the number of correct decisions. Precedent and references are a decision rule that helps judges maximize the number of correct decisions efficiently. The three models are not necessarily inconsistent in that different aspects of adjudication may be better fitted in one or the other.

In any case, the three models yield different predictions as regards the referral and precedential practices that one will be able to observe, especially at different levels of national judicial hierarchies. The legal model predicts that high courts will make more references than other courts because they comply with the obligation to refer; it also claims that high courts will make important references and that compliance with ECJ decisions will be high if national courts have accepted the obligatory nature of ECJ decisions. The team model says that high courts make more references because the resolution of EC law issues is deferred to an appeal; It also says that high courts and lower courts will ask the most important questions; and that precedential practices will be driven by the need to address difficult issues. The bureaucratic model, at the

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opposite extreme, predicts that higher courts will make less references than lower courts, that they will make less important references and that they will be more incompliant with ECJ decisions.

In what follows, I engage in an empirical analysis to evaluate whether any of the models of judicial behavior actually explains the reality of adjudicatory practices in EC member states. Do national judiciaries act more like the legal model says, the bureaucratic model suggests or more like the team model predicts? What model of institutional behavior seems to capture best the practices that one observes? To answer these empirical questions is to dig into the institutional behavior of judges, not only in the judicial cooperation in the application of EC law, but also in adjudication in general. There is an analytical distinction that it will be necessary to keep in mind. I am not trying to explain the etiology of any single reference or a case of compliance but rather the distribution of reference/precedent rates.57

I divide the analysis into the study of three types of decisions that judges face: first, the decision to refer a case to the ECJ; second, the decision as to what to refer; and third, the decisions as to how to use ECJ rulings. In each case I review the evidence put forward by previous studies on the issue and then build on those by putting forward more evidence. As I will try to show, much disagreement comes from the usage of different indexes. The question turns on which index is better and there are some methodological and empirical problems on which the discussions should also turn.

III. REFERRAL PRACTICES

The first decision that a national court makes that has received the focus of attention of scholars is the decisions to refer a case. The evidence that has been used to support the claims of the models above come from the usage of the preliminary reference mechanism by national courts. The point here is to capture the “willingness to refer of a court” which reflects the frequency with which a court cooperates with the ECJ.58 Using the raw number of references is not appropriate because it does not control for many other variables that may be at play, such as the number of courts, the concentration of litigation, the caseload, etc. For this reasons, authors have turned to indexes such as proportions. At least two indexes have been used. Stone and Brunell use the proportion of references from a country. Scheingold and Chalmers use the proportion of EC law cases referred. I construct a third one: the proportion of references over the caseload of a court.

57 Like Durkheim and many other sociologists, I am not trying to explain the reasons that lead any single person to commit suicide, but rather how suicide rates are distributed among societies or actors in a society. 58 I want to point out here though that the language that I have been using may be a little bit misleading. When this index tries to capture “willingness”, it means that the sort of behavior that it reflects results from the “will” of actors. But what has to be filled with some content is precisely this “will”, which is what the bureaucratic and the team models are about.

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Three Indexes of Judicial Cooperation

Proportion of References From A Country References from a Type of Court * 100Total References from a Country

Proportion of EC Law Cases Referred References from a Type of Court * 100EC law Cases Decided by that Type of Court

Proportion of References From A Court References from a Type of Court * 10000 Caseload of that Type of Court

I analyze the application of these three indexes in the following subsections.

A. Proportion of References From A Country

One of the first attempts to test empirically one of the models above is a study by Stone and Brunell. However, as I will try to show, the index they use is not fit to make the claims they want to make.

1. Cross-National Evidence

Stone and Brunell have criticized Alter for overemphasizing the importance of lower courts as the “motors of legal integration.” They use evidence based on the number of references and look at cross-country data.59 In the graph below, they report for each country the percentage of references from that country for three types of court: lower courts, intermediate courts and high courts. The percentage they report is the proportion of references coming from a particular type of court in a country over the total number of references from a country.

59 Alec Stone Sweet & Thomas L. Brunell, The European Court and the National Courts. A Statistical Analysis of Preliminary References 1961-95, Harvard Jean Monnet Working Paper No. 14/1997, (visited Mar 31st, 2000) <http://www.jeanmonnetprogram.org/papers/97/97-14-.html>.

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Judicial Cooperation from Low, Intermediate and High Courts

Court Type

The criticism is double. First, they argue that the graph shows that in the majority of countries –seven out of twelve: Denmark, France, Ireland, Italy, the Netherlands, Spain and the UK- intermediate courts have been the “most active” courts in making references. Only in Belgium, Germany, Greece and Portugal have lower courts referred the largest proportion of references from that country. Thus, lower courts were not the motors of integration in many countries.60 Second, when Alter claims that lower courts have used references for a preliminary ruling to subvert the control of appellate courts, the data, Stone and Brunell say, shows that intermediate courts were even more willing to cooperate with the ECJ. This fact is particularly interesting, they note, given that lower courts hear in principle more cases than intermediate courts. Thus Alter’s explanation that lower courts make references to subvert the control of appellate courts is dubious.61

Stone and Brunell have a different theory about what explains the patterns in the graph. In their article, they assume that “national judges strongly prefer to dispose of their cases efficiently, that is, they would like to go home at the end of the day having disposed of more, rather than fewer, work-related problems.”62 This assumption is partially similar to that of the team model in the sense that judges care about case management. As regards patterns of references across levels of the hierarchy then, they say that “because a core function of appellate judging is to resolve disputes involving legal interpretation and conflict of law, we would expect the appellate courts to be far more involved in the construction

60 Id. at 9. 61 Id. 62 Id. at 5.

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of the legal system than Alter imagines them to be.”63 Thus, for them, it is the specialization of appellate courts in law-finding in the division of labor of the judicial hierarchy that explains why intermediate courts make most of the references from a country.

2. The Problems

Stone and Brunell’s response to Alter merits careful attention. The problems are both theoretical and methodological. They affect their criticisms of Alter because of the interpretation of the data they make and their own explanations, which remain limited.

To begin with, part of their criticism is slightly unwarranted because they simply use a different definition of “lower courts” and “high courts”. Since Alter counts as “lower courts” what they call “lower” and “intermediate courts”, Alter’s proposition is still true in the graph. One can observe that “high courts” were less active than “lower” and “intermediate courts” in all states except Luxembourg. And Alter would say that this is because of power differentials. Moreover, she would still claim that because intermediate courts were very willing to make references to the ECJ, lower courts had a much smaller need to refer. This is why the graph shows that in the majority of countries lower courts make a smaller proportion of references than intermediate courts, but still a larger proportion than high courts. Beyond this, Stone and Brunell’s usage of this data to criticize Alter is inadequate. They gauge the theory in the light of the proportion of references made by the different types of courts for each country. Their proportion is based on the number of references from a particular type of court over the total number of references from that country. Doing this controls for the total number of references that a country makes, but does not control for the number of cases that a court hears. To interpret this index as a “tendency to refer by type of court”, which is what they seem to do when they say that intermediate courts have been “very active”, is problematic. Imagine a court that referred all its cases, but represented a small proportion of the number of disputes in a country in comparison to other courts and could only represent a small proportion of the total number of references from that state. One would say that this court is certainly very willing to refer given the cases it hears, but its references only represent a small proportion of all the references from that state and, on Stone and Brunell’s index, this would not appear so. This is the type of claim that they make, while they themselves imply that the amount of cases that a court hears should be the basis of the proportion.64 Thus, Stone and Brunell’s index is not fit to make the claims that they want to make.

Their own explanation of the data does not have this character but it faces another problem in that it is not easily read in the data. The fact that intermediate courts from a country make the biggest proportion of references from that country does suggest that those courts deal with most EC law issues. But this only occurs in seven out of twelve countries, while one would expect it

63 Id. at 9. 64 Id.

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to be generalized. This may indeed be the case, but until one does not control for caseload differences it may not be apparent. As it stands, their explanation sounds somewhat ad-hocish. For example, if appellate courts represent a bigger proportion of references because they specialize in law-finding, this does not explain why high courts, which only do law-finding, represent a smaller proportion of a country’s references than any other court. Their explanation I think is undertheorized. While they have a theory based on case-management for each judge, they fail to elaborate on how judges relate to other judges in the hierarchy and with the ECJ and thus on the phenomena that one might observe on the whole.

B. Proportion of EC Law Cases Referred

If the previous attempt was misdirected, other studies build on the idea and start controlling for all those variables that account for references systematically. One of those strategies has been to use the proportion of references made over the total number of EC law cases that a court hears. This solves the issue of having to account for many cross-national factors. The intuition is clear: a court that refers a larger proportion of its docket of EC law cases is more “willing to refer” than other courts. But one runs into many other problems because the data on the number of EC law cases is hard to gather and unreliable. The evidence is scant but worth a look. I review here two applications of this index: the first by Scheingold, who was gauging the “status and role of legal processes in the political integration of the EC”65, and the second by Chalmers and myself in an attempt to study national decision-making on EC law matters.

1. Assessing the Role of Law in Legal Integration

Scheingold posits as his research question whether “national judges are being enlisted in the resolution of Community problems.”66 For this, he takes a look at the usage of the preliminary reference mechanism by national courts and compares it to the number of occasions that national courts have had to use it, this is, the number of EC Law cases in national courts from a database build by the ECJ. The table below reproduces his data for the year 1969.

65 Stuart A. Scheingold, The Law in Political Integration. The Evolution And Integrative Implications of Regional Legal Processes in the European Community, Occasional Papers in International Affairs n. 27 (Harvard University Center for International Affairs 1971) at 1. 66 Id. at 30.

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Reference Rates on EC Law Cases by Jurisdiction 1969

Member State Type of Court References EC Law Cases Proportion by Type of Court (In %)

Global Proportion (In %)

Supreme Court 1 3 33 Belgium Other 3 6 50

44

Supreme Court 7 16 44 Germany Other 4 36 11

21

Supreme Court 1 3 33 France Other 0 3 0

17

Supreme Court 0 1 0 Italy Other 0 1 0

0

Supreme Court 1 2 50 Luxembourg Other 0 0 0

50

Supreme Court 0 2 0 Netherlands Other 0 3 0

0

Supreme Court 9 27 33 TOTAL Other 7 49 14

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He talks about the proportion of references with the following words: “one is immediately struck by the enormous disparity between the opportunities national judges have had to utilize Article 177 and their actual utilization of the proceedings.”67 “These figures are not entirely satisfactory since only tribunals of last resort are required to seek interpretations from the Court of Justice; […] Figures for 1969 […], however, suggest that the proportion of cases referred by final jurisdictions is not by rough count much different from that of the lower courts.”68 Scheingold, of course, realizes that deviations from 100% in the proportion of references do not entail a rejection of community law by national courts. There are situations in which referrals are not necessary –precedent, acte clair, etc-.69 He then goes on to take a look at compliance with ECJ decisions and acceptance of the supremacy of ECL, for which he has no systematic data, but finds that the analysis of national decisions by other authors suggests that courts have adopted ECJ doctrines. He rounds up his analysis by saying that, after all, what is important is the interpenetration between national courts and EC law: “Article 177 is not as important as is regular utilization or application of Community law by national judges.”70 But he nevertheless concludes “Article 177 is not being loyally applied – at least not yet.”71 “Clearly, there is resistance among national judges.”72

2. Evidence From the UK and Spain

Chalmers has studied in depth reported decisions on EC law in the UK. His database draws from the ECJ’s database on national decisions which he completes to gather 1088 British decisions on EC law for the years 1973-1998. With it he tries to evaluate the position of the High Court, the Court of Appeal and the House of Lords towards the ECJ using as an index the number of references by those courts over the number of reported EC law cases that are 67 Id. 68 Id. at 32. 69 Id. at 32-33. 70 Id. at 35. 71 Id. at 32. 72 Id. at 35.

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dealt by those court.73 Chalmers does not perform any statistical test on his data. I try to use his findings to see whether the type of court has any statistically significant effect on the treatment given to EC law cases, in particular as to whether they are referred. I perform a Chi-Square test and the following table shows the results.74

Treatment of EC law Cases in the UK by Court Level 1973-1998

High Court Court of Appeal House of Lords Total

No Reference 197 60.43%

142 66.35%

22 48.9%

361 61.71%

Sends Reference 102 31.29%

38 17.75%

18 40%

158 27%

Denies Reference 27 8.28%

34 15.9%

5 11.1%

66 11.28%

Total 326 100%

214 100%

45 100%

585 100%

Chi-Sq = 20.463554, df = 4, p = 0.0004

They show that in the majority of cases (72.99%)75 no reference is made. The High Court does not make a reference in 68.71% of its cases, the court of appeal in 82.25% of them and the House of Lords in 60%.76 The results are statistically significant, which means that the differences in the percentages in the table among the three types of courts are “relevant”.77 Chalmers says that the data does not fit the politics of the bureaucratic model.78 He observes that the House of Lords refers more of its cases (40%) than other courts (31.29% for the High Court and 17.75% for the Court of Appeal) and implies that this is due to the fact that, contrary to lower courts, it has the obligation to refer issues of EC law to the ECJ.79 This does not seem to lend support to the claim that the House of Lords is reluctant to cooperate with the ECJ. The fact is that given the number of EC law cases it hears, it is more willing to send a reference than the High Court or the Court of Appeals.

73 Damian Chalmers, The Much Ado About Judicial Politics in the United Kingdom: A Statistical Analysis of Reported Decisions of United Kingdom Courts Invoking EC Law 1973-1998, Harvard Jean Monnet Working Paper No. 1/2000, (visited Mar. 31st, 2002) <http://www.jeanmonnetprogram.org/papers/00/000101.html> at 30. The three courts together account for 61.24% of all references for the UK. 74 The Chi-Square test is a non-parametric test. The null hypothesis is that there is no association between the rows and columns of a table and the alternative that there is some association, this is, that the differences in the frequencies of the cells of the table are beyond what could be due to chance. 75 I add the total percentage of the cases in which no reference is made (61.71%) to that of the cases in which a reference is denied (11.28%). 76 Add the cases in which there is no question about referring to those in which the court denies a reference. 77 Contrast these results with the graph from Stone & Brunell above. There, intermediate courts in the UK, namely the Court of Appeal, represented the largest proportion of references from the UK. Now the High Court and the House of Lords are more willing to make a reference than the Court of Appeal. The two indexes clearly show different aspects of judicial behavior. 78 CHALMERS, supra note 73, at 30. 79 Id.

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I have conducted a similar study of reported Spanish decisions on EC law. I have gathered a random sample of 475 Spanish decisions on EC law drawn from national databases and perform the same test on my data. More information on the construction of this sample can be found in Appendix 2. The results are shown in the following table.

Treatment of EC law Cases in Spain by Court Level 1986-2000

Lower Courts High Courts80 Total

No Reference 260 91.87%

168 87.50%

428 90.10%

Sends Reference 7 2.47%

0 0%

7 1.47%

Denies Reference 16 5.65%

24 12.50%

40 8.42%

Total 283 100%

192 100%

475 100%

Chi-Sq = 11.358917, df = 2, p = 0.0025

Again the results show that there seems to be a statistically significant relationship between the treatment given to EC law cases and the type of court.81 This time, however, the difference between the proportion of references from high courts and lower courts shows that high courts in Spain are much less willing to make references than lower courts. These results would lend some support to the bureaucratic model.

3. Discussion

Scheingold’s data and the data for the UK seem to fit the predictions of the team model, while the data on Spain seems to support, at least prima facie, the claims of the bureaucratic model. But upon reflecting on some methodological problems, the results may be different. Apart from that, the evidence does not seem to fit the legal model.

Higher courts are more willing to cooperate than lower courts. In Scheingold’s data, in spite of his assertion that there does not seem to be a difference between the proportion of references of high courts and the rest of courts, the truth is that in three –Germany, France and Luxembourg- out of four countries for which the index can be constructed, national high courts refer more than lower courts, the exception being Belgium. The data for the UK shows a House of Lords very willing to refer, but the data from Spain does not allow to say the same for the Spanish high courts. The main problem in this type of approach is that of constructing the index. The studies use reported decisions and it is clear that not all court decisions are

80 Tribunal Supremo and Tribunal Constitucional. 81 This result should be taken with extreme caution. One of the cells contains a zero and this is problematic.

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reported, neither in the UK nor Spain. Even Chalmers says his study has a faute de mieux quality.82 Scheingold and Chalmers’s studies use to find out the number of EC law decisions a database compiled by the ECJ. This database contains EC law decisions by national courts that either national courts have sent voluntarily to the ECJ or that the Legal Services of the Court have gathered from law journals. As one can guess, this database is rather a sample of decisions and not even a random sample. In my own study, I use directly national databases and try to find national decisions on EC law. I have found many more decisions than those included in the ECJ database, but the reporting services in Spain are far from comprehensive. Given the limits above, what can be critical here is the differential between reported decisions of higher courts and lower courts. High court decisions are widely reported so their proportion of references may be mostly right. But lower court decisions are not much reported. Since a lower court is much more likely of being reported if it makes a reference than not, the proportion of references by lower courts could be skewed. If this suspicion turned out to be true, then the results would be even more marked for the UK and could change for Spain: in the UK, the House of Lords would be making more references than any other court and in Spain, the Supreme Court and the Constitutional Court could be making more references than lower courts as reported.83

Apart from that, the data does not seem to lend support to the legal model because higher national courts do not refer all EC law cases they hear, in spite of the fact that they have an express obligation to do so. This is Scheingold’s point when he sees reluctance in judicial behavior. Scheingold understands that there are reasons not to take this obligation strictly, such as when an issue has already been decided. But he was writing in 1971 and the ECJ only incorporated nuances to the obligation of high courts to refer in its CILFIT decision of 1982.84 It is hard for a legalist to explain the behavior of national high courts before 1982. The obligation to refer was in the Treaties, it was not controversial, and the rule does not seem to suffer from vagueness or ambiguities, as least as to its application to Supreme Courts in Member States. The results do not seem to be due to incompetence either, because the data from the UK and Spain shows that high courts also denied references when asked by the parties to the case. This means that the applicability of EC law had been brought to the attention of the courts and it is difficult to believe that they were unaware of the regulation of the preliminary ruling mechanism.

Before moving forward, I want to point here to the fact that the results from the UK and Spain are not easily comparable and this is why I do not try to make any inferences by comparing across countries. The indexes are based on the number of EC law decisions that a court makes, but what counts as an EC law decision is not obvious, and it is even less clear what should have been an EC law decision. What to count as an EC law decision of course depends on the 82 CHALMERS, supra note 73, at 3. 83 I do not think that the claim actually applies to the UK study as I report it here so long at it limits itself to the observance of the High Court, the Court of Appeals and the House of Lords. It is my understanding that decisions of those three courts are sufficiently reported. But it would be problematic if one wanted to get into the picture the myriad of UK administrative judges. 84 Case 283/81, Srl CILFIT v. Ministry of Health [1982] E.C.R. 3415.

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purpose of the study, but at least it suggest that it is difficult to compare the existing results because they have used very different criteria. From what I gather is the ECJ database, Chalmers uses decisions whose main issue is about EC law. My sample is much broader because it was performed on the basis of citations to EC law, which means that even cases for which EC law was only tangential were included.

C. Proportion of References From a Court

In an attempt to solve the problem of gathering EC law decisions, especially across all member states, I try to construct an alternative index of judicial cooperation based on references and data on caseload of national courts. Some interesting results ensue.

1. Data

I have gathered data on the number of references that any single type of court makes within a year from 1989 to 1998.85 I have also collected data on the number of decisions that are rendered by most national courts in member states except Austria, Finland, Luxembourg and Sweden. The sample contains high courts, intermediate courts, lower courts and lowest courts.86 I exclude constitutional courts from the analysis because of their peculiar position within the national constitutional structure.87 More information on the data I have gathered can be found in Appendix 1.

The comprehensiveness of the sample is shown in the following table, in which the percentage indicates the proportion of references over the total number of references from a particular country during the period I consider that are included in the sample.

85 The data on references come from The Alec Stone Sweet & Thomas L. Brunell Data Set on Preliminary References in EC Law (1958-1998). It can be found online at (visited Mar. 31st, 2002) <http://www.iue.it/RSC/RSC_TOOLS/>. 86 In dealing with previous studies, it is often troubling to see that it is never specified whether a court counts as a high court, an intermediate court or a lower court. An explicit classification may help to solve some misunderstandings. The table classifying courts by position in the hierarchy can be found in Appendix 1. 87 Constitutional courts have never made references to the ECJ, except for the Italian Constitutional Court in a period that lies outside the scope of this study.

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Comprehensiveness of the Sample 1989-1998 (References Included in the Sample vs. Total References)

Member State

References Included/Total Number of References

(Joined References Included) %

References Included/Total Number of References

(Joined References Excluded) %

Belgium 177/180 98.33 156/159 98.11 Denmark 47/49 95.91 44/46 95.65 France 245/245 100 179/179 100

Germany 518/518 100 463/463 100 Greece 33/34 97.06 27/28 96.43 Ireland 17/17 100 17/17 100

Italy 362/374 96.79 248/260 95.38 Netherlands 191/192 99.48 160/161 99.38

Portugal 30/30 100 30/30 100 Spain 78/118 66.10 50/52 96.15

UK 172/175 98.28 162/165 98.18

The sample is almost complete for all countries –at least 95% of the references made by a country are included-. Only Spain (66.10%) stands out at the bottom, but the gap is more apparent than real because the Spanish gap is caused by a large group of joined cases coming from a single quasi-tribunal that I do not consider.88 If one counts a group joined references89 as a single reference, then the sample can also be considered highly comprehensive for Spain (96.15%).

With these data, I construct an index that represents the proportion of references that a court makes to the ECJ each year given its caseload:

Proportion of References per Court per Year = References per Court per Year * 10000 Decisions per Court per Year

This gives the number of references per 10000 cases heard by a national court in a year. The intention is to control for the number of cases that a court hears and determine how much does a reference represent given the number of total cases that a court entertains. It should be clear that I do not use the number of decisions on EC law that a court renders but rather the total number of decisions. This is a less perfect indicator than when using the number of EC law cases but it solves the problem of the reliability of data on court decisions.90

2. Results

I try to evaluate the models above by comparing the median proportion of references of high courts for the years 1989-1998 to that of other courts for the

88 Tribunal Economico Administrativo Regional de Catalunya. Joined Cases 110/98 to 147/98. 89 The practice of the ECJ is to join references from the same court on the same issue. Thus, in fact, there is only one “issue” referred. Whether cases with the same issue are referred or not will mostly depends on national procedural rules on how to handle cases when references are made, whether cases can be suspended, etc. 90 The problem of what counts as a decision or a case handled by a court still remains though. I decide to use the broadest categories which normally is referred to as the number of disposed cases in that year. This is what makes the comparability of statistics across states complicated and delicate.

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same period.91 One observation is a data point that adopts the value of the proportion of references for a particular court in a particular year. I report the p-value of the Kruskal-Wallis test.92 The table below shows the results.

Judicial Cooperation Across Levels of the Judicial Hierarchy 1989-1998

Member State Type of Court Number of Observations Median Proportion (0/000) p-value (KW) Lowest 20 0.0000 Lower 30 0.0189

Intermediate 20 1.9700 Belgium

High 20 1.6000

0.000

Lowest 0 0.0000 Lower 30 0.0000

Intermediate 10 1.3500 Denmark

High 10 10.000

0.046

Lowest 20 0.0195 Lower 50 0.0376

Intermediate 20 0.0786 France

High 20 0.7324

0.004

Lowest 10 0.0020 Lower 40 0.0514

Intermediate 60 0.4089 Germany

High 50 5.2434

0.000

Lowest 10 0.0000 Lower 20 0.0000

Intermediate 20 0.0000 Greece

High 20 0.0000

0.563

Lowest 30 0.0000 Lower 10 0.0000

Intermediate 10 0.0000 Ireland

High 10 22.300

0.052

Lowest 10 0.0329 Lower 20 0.0784

Intermediate 20 0.1954 Italy

High 20 0.2453

0.000

Lowest 10 0.0169 Lower 10 0.2053

Intermediate 10 0.4535 Netherlands

High 50 4.1580

0.000

Lowest 0 0.0000 Lower 40 0.0000

Intermediate 20 0.0000 Portugal

High 20 0.0000

0.706

Lowest 20 0.0000 Lower 50 0.0000

Intermediate 40 0.0000 Spain

High 10 0.0000

0.085

Lowest 120 0.0000 Lower 20 0.0180

Intermediate 10 2.2400 UK

High 10 72.200

0.000

Lowest 250 0.0000 Lower 320 0.0022

Intermediate 240 0.0185 EU

High 240 1.4600

0.000

91 I use the median because it is less sensitive to outliers than the mean and we are talking about the “average court in the average year”. 92 The Kruskal-Wallis test is a non-parametric test of the difference of medians of two or more populations. The null hypothesis is that there is no difference between the medians of those populations and the alternative that there is a difference.

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The results show that in the majority of member states, lower courts refer a smaller proportion of cases than intermediate courts, which in their turn refer a smaller proportion of cases than high courts. The exceptions to this rule are Belgium, in which intermediate courts seem to refer more than other courts, and Greece, Portugal and Spain, countries in which the medians are all equal to zero. In the EU as a whole, lower courts refer fewer cases than intermediate courts, which refer fewer cases than high courts.

The differences among the median proportion of references for each type of court are statistically significant in seven out of eleven countries I consider, almost significant for two others –Ireland and Spain- and not significant in Greece and Portugal. They are also statistically significant for the EU as a whole. Statistical significance means that the null hypothesis that all samples have the same distribution can be rejected. In other words, the hypothesis that all courts refer the same proportion of references can be rejected.

3. Discussion

The results lend some support to the predictions of the team model.93 After controlling for the amount of cases that a court structurally hears, it becomes clear that lower courts in the hierarchy refer a smaller proportion of their cases than higher courts. Belgium is an exception to the rule because the Labor Court

93 Confidence in these results is reinforced by the fact that Chalmers’ article and my data based on the proportion of EC law cases referred renders similar results to those here.

Judicial Cooperation and Hierarchy

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of Appeals is very active in making references. The cases of Greece, Spain, and Portugal are probably due to “newcomer effects”. Their high courts do not seem to refer more cases than lower courts but this is because having joined the EC in the few years before the period I consider here, few cases have reached the higher parts of the hierarchy and patterns of referrals have not yet appeared.94 In any case, the results seem to run counter to the predictions of the bureaucratic model.

Moreover, it is interesting to see that in almost all cases higher courts refer a substantially bigger proportion of cases than other courts. This should come as no surprise in the legal and the team models, for higher courts have the obligation to refer all issues of EC law that are necessary to resolve the case. While it is certainly true that the ECJ has relaxed this obligation95, it cannot be forgotten that it remains the principle and the exceptions are build around it. Courts of last resort either refer as a matter of strict obligation or because they take into account that they are the last chance to get the decision right. The behavior of high courts on this point should be put in sharp contrast to the small role that rules seem to play in the bureaucratic model as reasons for action. Add to that the fact that the obligation to refer is a direct attack on the institutional power of a court since it transfers decision-making power to the ECJ.

At another level of discourse, the very small proportion of references for all types of courts says something about the importance that references for a preliminary ruling may play within the daily business of courts. Contrary to what some scholars seem to desire and what some theories presuppose, national courts only refer a tiny percentage of their cases. This is clearly explained in the team model. References are only an extraordinary means of producing the knowledge necessary to resolve a case. Deference comes first through study of ECJ case law and citations. There is further evidence that suggests this interpretation. The following table shows why national courts have denied a reference in the sample of EC law decisions of the ECJ database.

National Courts’ Declinations to Request Rulings from the ECJ 1976-198296 Belgium France Germany Italy Netherlands UK Total

Not Court of Final Appeal 0 2 6 0 4 4 16 Injunction Proceedings 1 0 5 0 4 1 11

Precedent 13 12 79 15 12 9 140 Interpretation Clear 4 7 27 2 3 3 46

Not Relevant For Outcome 1 2 4 1 4 0 12 Other 3 5 8 3 3 6 28

It should come as no surprise to see that the two major reasons for not referring is that the resolution of the issue is clear (18.18% of cases) or that a precedent by the ECJ already exists (55.33% of cases). If this were not so, one could have serious doubts about the capacity of the ECJ to deal with its docket. 94 The case of Spain is particularly interesting since the Kruskal-Walllis test reveals that the distribution of reference rates differs across levels of the hierarchy and the results are almost statistically significant, but there is no clear pattern, yet. 95 CILFIT Case. 96 Table borrowed from VOLCANSEK, supra note 4, at 35.

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The data here do not lend themselves easily to comparison across states since the index is constructed on partial data on caseload of national courts that I plan to investigate further. But a quick look shows that some courts in some countries refer a larger proportion of cases given the dockets they hear. Most notably, Denmark, Ireland and UK high courts seem to refer a substantially larger proportion of cases. Interestingly enough, those three countries seem to share a “common law” tradition. The team model interpretation of those results is that those courts have been more cooperative with the ECJ in virtue of the common law tradition which encourages courts to cooperate with each other, the paradigmatic example being the obligation of stare decisis.

D. Conclusion

In conclusion, in this section I have examined evidence that suggests that higher courts in national judicial hierarchies are more willing to make references than lower courts. The patterns of referrals of higher courts, however, fail to reach the expectations of a strict obligation to refer. This runs contrary to the predictions of the bureaucratic model and fails to meet the requirements of the legal model. All in all, it seems to fit the predictions of the team model.

IV. THE CONTENTS OF REFERENCES

The second decision that scholars have been interested in is the decision of the national court as to the cases to refer. The evidence that scholars of legal integration have used to support their theoretical claims comes from the contents of the references made by national courts. There are two aspects that I consider here: I review one study by Nyikos on the inclusion of national judicial opinions as to how a reference should be decided; then I construct an index that tries to capture the importance of the cases referred to the ECJ.

A. Judicial Opinions in References

One of the practices of courts making referrals, buttressed by the ECJ itself97, is that of including an opinion along with the question asked as to how the issue should be resolved. The practice has been interpreted in different ways: from the legalist or the team model’s perspective, this allows the ECJ to garner more information about the issue of the case. It also forces the national court to think deeper about the problem and, hopefully, it actually helps it in solving it without the ECJ, which saves a reference and precious ECJ time; from the political science perspective, it is an attempt by national courts to influence the ECJ’s decision-making process.

97 Court of Justice of the European Communities, Information Note on References by National Courts for Preliminary Rulings, (visited Mar. 31st, 2002) <http://www.curia.eu.int/en/txts/others/txt8.pdf>.

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1. The Evidence

Nyikos has studied the strategic interactions between national courts and the ECJ in the context of the preliminary ruling.98 She uses data on references in three areas of EC law -free movement of goods, free movement of workers and equal treatment between men and women-, choosing for each area the three member states that have produced most references (Observations = 629).99 For our interest here, she codes whether, along with the reference sent to the ECJ, the national courts includes an opinion as to how the case should be decided. She understands this behavior as an attempt by the referring court to influence the ECJ’s final decisions. She expects that given that each court tries to “improve its position within the system”100, lower courts are more likely to include opinions in their references than higher courts. Her results are shown in this table.

Effects of Court Level on Preliminary Opinions

Court Level

Low Middle High Total

Yes 118 48.0%

55 28.6%

64 47.1%

237 41.3%

Preliminary Opinion No 128

52.0% 137

71.4% 72

52.9% 337

58.7%

Total 246 192 136 574

Chi-Sq = 19.055, df = 2, p < 0.001, Teta = 0.182

Nyikos claims that the data in the table corroborate her theory. First, she says that lower courts make more references (42.8%) than middle courts (33.5 %), which make more references than higher courts (23.7%), which fits her idea that lower courts refer because this decreases the probability that their decision will be appealed.101 She then says that lower courts are more likely to include an opinion in their reference to influence the ECJ (48.0%) than middle courts (28.6%) and high courts (47.1%) because they are trying to enhance the status of their views and opinions in the national judicial hierarchy. This would lend some support to the bureaucratic logic.

98 Stacey A. Nyikos, The European Court of Justice and National Courts: Strategic Interaction Within the EU Judicial Process, Paper prepared for delivery at the 2001 Annual Meeting of the American Political Science Association, San Francisco, August 30-September 2, 2001. The paper can be found online at (visited Mar. 31st, 2002) <http://pro.harvard.edu/abstracts/026/026002NyikosStac.htm>. 99 Depending on the area, she uses one state or the other. Belgium, Germany, Netherlands, France and the UK. 100 NYIKOS, supra note 98, at 13. 101 Id. at 28.

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2. The Problems

The claim about the origin of references has already been dealt with above in reviewing Stone and Brunell’s study and deserves no further comments. It is hard to interpret it as a “tendency to refer”. The second claim deserves further elaboration. Nyikos says that the data support her hypothesis that, because of their position in the hierarchy, “lower courts have more reason to clarify to the ECJ the position that they find legally correct and whish to solidify against internal appeal.”102

That the data support this claim is far from clear: the majority of references from any type of court (58.71%) do not include any preliminary opinion. The results are less spectacular than what one might have thought if the whole rationalization of the preliminary ruling is that it allows national judges to insulate their decisions from appeal and preliminary opinions serve to influence the ECJ. Then, that lower courts are much more likely to include an opinion in comparison to higher courts is rather an exaggeration. The difference in the proportion of preliminary opinions between lower courts and high courts is merely 0.9%. Not much with which to ground a real difference of behavior between high court judges and lower court judges.

Moreover, Nyikos is surprised by the fact that high courts seem to send more opinions along with their references than expected. She modifies her hypothesis to “include the incentives of courts of last instance to insulate national law against external revision”103. This last reference to “external revision” is very unclear. Who reviews the decisions of courts of last instance? Certainly not the ECJ, since it does not get to review decisions of national courts. There is no appeal to the ECJ. Maybe she refers to peer criticism and pressure either by the ECJ or foreign Supreme Courts. But this seems to be outside the types of claims of the bureaucratic model as applied to each legal system. High courts are high courts within their legal system. One last option is that maybe high courts are here being strategic as regards other political branches, namely legislatures and governments. But how does the logic work? If national high courts are trying to protect national law and this is why they include an opinion –in support of national law-, the real question is why are they making a reference in the first place. Withholding the reference is the best way to protect national law. Now there is the obligation of higher courts to refer. But this is not explanatory in this model because no one controls the decision of high courts not to refer. And high courts have refused to make references. Maybe the logic is the contrary: the higher court makes a reference and it includes an opinion against national law because it wants to influence the ECJ’s decision. The problem with this is that if a higher court wants to insulate its policy preference against revision by national legislatures, it is sufficient that it “communitarizes” the decision, this is, to claim that it is an aspect of EC law that national governments cannot review. The reference is still superfluous.

102 Id. at 17. 103 Id. at 29. Emphasis NOT added.

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The legal and the team models read those numbers differently. The legal model says that in the majority of cases no opinion is included because there is no legal obligation to do so. The team model says that it is because courts do not know the answer to the question that a reference is made. The resulting general pattern is interesting -lower courts and high courts seem to include more preliminary opinions in their references than intermediate courts-. One explanation within the team model might be that higher courts are more daring in giving opinions about how to decide cases because this is where the best judges are, with the more time to deliberate. And lower courts express their opinion as a proxy for the reason to refer: since lower courts do not have the obligation to refer, the opinion is a justification for the reference. Among a couple of alternative interpretations of EC law, the lower court refers to seek the validation of the interpretation that it thinks the ECJ would have announced. How all this is explained in the legal model is not clear to me.

B. The Importance of References Across the Hierarchy

Another claim that authors have made as regards the cooperation between the ECJ and national courts is that the importance of the questions referred will vary with the position of the national court in the hierarchy. The legal model says that the higher the court, the more important the question is likely to be. The bureaucratic model predicts that the higher the court, the less important the question is likely to be. The team model predicts that the importance of the references should not be tied to the particular type of court making the reference.

Operationalizing the “importance” of the questions referred is no easy task. I opt here for an indicator that reflects the reactions of legal scholars, doctrine, over which I will have to elaborate further.

1. Data

The ECJ has gathered data on doctrinal notes by legal scholars to its decisions since its very inception. This data is published annually and contains, for each ECJ decision, a bibliographical list of case notes.104 The list is not exhaustive but it can be considered a survey of the most important journals that usually publish doctrinal commentaries to ECJ case law.

It is clear that some cases receive more comments and others less. On average, a preliminary ruling by the ECJ receives 4.74 notes. I understand that it may not be unreasonable to posit that a longer list for a decision signals that this case has spurred the interest of legal scholars. There is no evaluative stance here: those notes could be critical or apologetic, but in any case, more notes

104 This includes the author, the journal in which it was published, pages and year. The data is available online at (Visit. Feb. 25th, 2002) <http://www.curia.eu.int/en/recdoc/notes/index.htm>.

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seem to indicate a stronger interest. The following table is a list of the top 5 annotated preliminary rulings.105

Top 5 Annotated ECJ Cases

Reference Name of the Case Date of Decision Referring Court Notes

Case 415/93 Bosman 15/12/95 Cour d’Appel de Liège (Belgium) 128

Joined Cases 6/90 and 9/90 Francovich 19/11/91

Pretura di Vicenza Pretura di Bassano del Grapa

(Italy) 122

Joined Cases 267/91 and

268/91 Keck & Mithouard 24/11/93 Tribunal de Grande Instance de

Strasbourg (France) 99

Case 450/93 Kalanke/Freie Hansestadt Bremen 17/10/95 Bundesarbeitsgericht (Germany) 83

Joined Cases 46/93 and 48/93 Brasserie du Pêcheur 05/03/96 Bundesgerichthof (Germany)

High Court of Justice (UK) 80

The number of notes directly reflects the reaction of scholars to ECJ decisions. However, the interest of ECJ decisions is in part due and determined by the particular issues that are referred by national courts. I think it is not too farfetched to further assume that the number of notes to an ECJ decision is an indicator of the importance of the issue referred to the ECJ. A lengthier list means a more important ECJ decision but also a more important question posed by the national court.

Therefore, I use the length of the list of notes to any decision by the ECJ as an index of the importance of the issue that the national court refers. I distinguish between references made by high courts, intermediate courts and lower courts and test whether there are any significant differences between the median number of notes that references from those three types of courts receive.106 I consider data for 2629 decisions from 1961 to 1997 that represent 3232 cases (including joined opinions).107

105 It is interesting to see that the most annotated decision is a case that dealt with the favorite topic of discussion among Europeans, soccer, which corresponds exactly to what one would expect. 106 For this section, “lower courts” include “lower courts and “lowest courts” to solve the problem of having a small sample of cases for some types of courts. 107 I excluded cases removed from the register. They do not receive notes.

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2. Results

I use the Kruskal-Wallis test of the difference of medians. I perform the tests for each state and across all member states to see whether the hypothesis that court level has no effects on the importance of the issue is corroborated.

Notes To ECJ Cases By Referring Court Type 1961-1997108

Member State Type of Court Number of Observations Median Notes Exact p-value (KW) Lower 185 2

Intermediate 65 2 Belgium High 56 2

0.488

Lower 19 6 Intermediate 29 3 Denmark

High 13 3 0.114

Lower 205 2 Intermediate 78 2 France

High 59 3 0.030

Lower 208 2 Intermediate 405 1 Germany

High 277 1 0.000

Lower 15 3 Intermediate 7 2 Greece

High 6 9 0.763

Lower 5 5 Intermediate 17 1 Ireland

High 8 2 0.159

Lower 214 3 Intermediate 41 2 Italy

High 43 1 0.126

Lower 9 2 Intermediate 3 0 Luxembourg

High 21 2 0.334

Lower 75 4 Intermediate 66 4 Netherlands

High 237 2 0.000

Lower 7 1 Intermediate 3 2 Portugal

High 10 0.5 0.649

Lower 14 4.5 Intermediate 23 4 Spain

High 2 4 0.700

Lower 153 3 Intermediate 33 8 UK

High 18 11 0.000

Lower 1109 2 Intermediate 770 2 EU

High 750 2 0.000

The results show no clear pattern as regards the notes to cases referred by courts at different levels of the judicial hierarchy. In some cases, the number of 108 I have performed the same analysis including only references from 1981 to 1997 to control for problems in the evolution of cases through national judicial hierarchies and in the impact of ECJ decisions among legal scholarship during the initial years and it leads to substantially the same results.

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notes seems to increase with hierarchy –France and the UK-, in other cases it seems to decrease –Denmark, Germany, the Netherlands and Italy- and still in others the pattern takes a U-shaped form – Greece, Ireland and Luxembourg- or an inverted U-shaped form –Portugal-, or is even flat –Belgium and Spain-. The general pattern for the EU is flat, suggesting that the typical ECJ ruling receives two notes regardless of the referring court-type.

The differences among the number of notes across levels of the judicial hierarchy are statistically significant only in France, Germany, the Netherlands and the UK. In the rest of countries, the hypothesis that variations in the number of notes may be due to random error cannot be rejected. For the EU as a whole, though, the effects of court level on the number of notes seem to be statistically significant.

3. Discussion

The results seem to lend some support for the predictions of the team model rather than those of the legal or bureaucratic models. There are no substantial variations in the importance of questions referred across levels of the judicial hierarchy in the majority of countries. Higher courts do not send unimportant questions in comparison to lower courts as the bureaucratic model advanced and higher courts do not send more important questions than other courts as the legal model predicted. There are surely sub-patterns for certain countries, but those may just be driven by random error. If there is some explanation for those sub-patterns, I have none that is clear, yet.

Notes to ECJ Cases By Referent Type 1961-1997

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Importance of References EU 1961-1997BoxPlot

For countries for which the results are statistically significant, the evidence is mixed. On the one hand, Germany and the Netherlands seem to fit the predictions of the bureaucratic model –more important references from lower courts-. And still, the importance of the references from lower and intermediate courts –for the Netherlands- or intermediate and high courts –for Germany- does not seem to differ substantially. On the other hand, the pattern for France and the UK is the contrary and higher courts make more important references, which fits the predictions of the legal model. Alter grounds the bureaucratic model on her study of Germany and France, but the results here show different phenomena for those two countries.

Interestingly, for the EC as a whole, the results suggest that there are statistically significant variations in the distribution of the importance of references across types of courts but the medians are not very telling. A look at the boxplot here shows some differences in those distributions. One can observe that the medians of the upper quartile are slightly higher for lower and

high courts. Moreover, outliers of lower and high courts seem to have more importance than those of intermediate courts, although they also vary more. Thus, there is a slight U-shaped pattern. The team model offered as a reason the fact that those courts are going to be the source of important references but for different reasons: the first, because they will raise new issues; the second, because they will send hard cases. This type of reading is also amiable to the legal model, but how the bureaucratic model would interpret this pattern is unclear.

Across countries, the importance of cases does not seem to vary substantially, except for the UK. UK cases, especially from the House of Lords, seem to receive more attention from doctrine than those of other countries. Are UK cases more important than other cases? Maybe what is really going on is that the study of the case law being a central feature of the common law tradition, the work of UK doctrine is driving the difference with the rest of countries. This is, UK authors comment on UK references comparatively more than any other national doctrine on their national references. Now Ireland does not stand out for the same reason. But the UK has certainly a larger cohort of legal scholars.

C. Conclusion

To conclude, the evidence shows that lower courts and higher courts make a bigger usage of the possibility to send an opinion along with their references

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than intermediate courts. It also reveals that hierarchy does not have a statistically significant effect on the importance of references in the majority of countries and the EU as a whole. The bureaucratic or the legal models fail to explain those patterns, which are better explained by the team model.

V. PRECEDENTIAL PRACTICES

In this section I turn to the last decision of national courts that has been the center of attention and that is one of the holes of impact studies relating to European integration: the extent to which national courts follow ECJ jurisprudence. Not that legal scholars have not read the ECJ’s case law or national decisions in the application of EC law. Certainly, the current state of satisfaction with the working of the EC judicial system stems from an intersubjective agreement that, overall, precedential practices exist. But there has been little attempt to capture them in a more systematic way. I review here two very different types of evidence. First, I take on Alter’s historical study of the reception of the doctrines of direct effect and supremacy of EC law by German national courts, this is, a study of compliance of national courts with those particular doctrines elaborated by the European court. Then I turn to a systematic study of Spanish EC law decisions in an attempt to gauge the models above.

A. The History of the Reception of the Doctrines of Direct Effect and Supremacy

Alter substantiates a large part of the support for the bureaucratic model through the history of the reception of the doctrines of direct effect and supremacy of EC law by national courts. Legal scholars and political scientists took note of the opposition of certain high courts to those doctrines, that they either rejected or moderated substantially, while lower courts were sending references to the ECJ and upholding EC law supremacy and direct effect. However, the truth is that, in general, while there is an abundant study of the case law of higher courts in member states, there is little systematic study of the reception of EC law by lower courts and thus it becomes hard to test the empirical validity of the theory, at the heart of which lies the distinction between the behavior of high courts and lower courts. Not being able to verify the second part of the story on lower courts, the assessment remains largely incomplete. Nevertheless, scholars have arduously reconstructed the stories of several crucial debates over the supremacy and direct effect of EC law, which can be useful. I propose here to look at one particular story that Alter calls the “turnover tax struggle” and that she claims lends support to the bureaucratic model.

1. The “Turnover Tax Struggle”

The “turnover tax struggle” began in the German tax courts when some German importers tried to challenge the practices of German customs in 1965.109 German customs taxed certain imported products to equalize their level of taxes

109 I take the following story from ALTER [01], supra note 23, at 80-87.

39



with that of domestic products. Allegedly, this practice was against the provisions of the EC Treaty. The importers had tried to request the EC Commission’s help but failed and they put forward a test case in front of a Finanzgericht, the German first instance tax court, to get it to the ECJ. As expected, the Finanzgericht referred the question to the ECJ that, in the Lütticke decision, declared that the particular Treaty provision at stake could be invoked in national courts and that the latter could find German law to be contrary to the Treaty.110 Lawyers and Associations of Exporters advertised their success looking for copycat cases. The Ministry of Finance issued a decree saying that they considered the ECJ’s decision to be invalid and ordered customs officials to disregard it. That was 1966. Tax courts did not give much credit to this decree and proceeded to entertain new cases and sent more references to the ECJ on other similar taxes. In subsequent cases, the German Ministry of Finance argued that turnover taxes were being categorized under the wrong Treaty provision and that the Treaty in fact allowed Germany to maintain the taxes until further harmonization took place. It asked the Bundesfinanzgericht, the Supreme Federal Tax Court, to send one of the pending cases on appeal to the ECJ, which the Court did. Along with its opinion on the case, the court reminded the ECJ that there were “200.000 complaints and 15.000 legal cases pending in an already overburdened tax court system.”111 It argued that it was not a “legitimate task of German tax courts to be required to review thousands of single decisions taken in application of material tax law.”112 In its answer to the Federal tax court in the Molkerei-Zentrale case, the ECJ did not overrule the Lütticke decision, but granted that the other Treaty provision did not have direct effect and that it was an issue to be decided by national courts whether the “turnover tax” fell within one or the other Treaty provision.113 Subsequently, the Federal Tax Court rendered decisions on appeal to the original Lütticke case114, minimizing the plaintiff’s tax refund, and to the Molkerei-Zentrale case115, in which it interpreted the Treaty narrowly so as to minimize the number of affected importers. Dissatisfied with the results, the plaintiff in Lütticke appealed to the Federal Constitutional Court arguing that the Federal Tax Court had reversed a lower court decision that applied an ECJ decision without re-referring the case. The Federal Constitutional Court answered that the right to a re-referral was not part of the right to a fair trial, while it showed some sympathy for the supremacy of EC law over national statutes.116

110 Case 57/65, Lütticke (Alfons) GmbH v. Hauptzollamt Saarlouis [1966] E.C.R. 205. 111 ALTER [01], supra note 23, at 82. 112 Id. 113 Case 28/67, Firma Molkerei-Zentrale Westfalen-Lippe GmbH v. Hauptzollamt Paderborn [1968] E.C.R. 143. 114 Firma Alfons Lütticke GmbH, Köln-Deutz, Bundesfinanzhof decision VIIB 106/67 of Oct. 29th, 1968, [1969] NJW 1135. 115 Molkerei-Zentrale Westfalen/Lippe GmbH v. Hautpzollamt Paderborn, Bundesfinanhof decision of July 11th, 1968, [1968] CMLR 300. 116 Firma Alfons Lütticke GmbH, Köln-Deutz, Bundesverfassungsgericht 2 BvR 225/69, [1971] NJW 2122.

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2. Interpreting the “Turnover Tax Struggle”

Alter claims that the turnover tax struggle is an example of the differing incentives that lower courts and high courts face which generate a competition dynamic that ultimately fosters legal integration.117 First of all, national courts had more or less differing interests on the issue. The Federal Tax Court “wanted to make the overwhelming legal backlog disappear because it was concerned for the smooth functioning of the legal system. It also clearly wanted to minimize the tax authority’s costs in the case. In addition, it had an incentive to find that […] [the Treaty] did not create direct effects, so that it could control the interpretation of the German tax code.” Lower tax courts “were unconcerned about the logistical difficulties […] and wanted to be able to review what they considered to be legally valid complaints. Their desire to influence legal doctrine and circumvent restrictive Federal Tax Court rulings further motivated the lower courts to send references to the ECJ.” The Federal Constitutional Court was rather unconcerned by the case because it was about the supremacy of EC law over statutory law and thus did not affect its own jurisdictional authority: the question of whether EC law was supreme over the German constitution was not at issue. Because of that, a judicial competition among national courts ensued which fostered legal integration: “Interjudicial dynamics overtook the Federal Tax Court’s and German government’s management of the issue. Lower court judges worked to influence doctrinal development through references to the ECJ, and these references in themselves meant that neither a Federal Tax Court fiat nor a government fiat could make the issue simply disappear.”118 Lower financial courts made references to circumvent Federal Tax Court doctrines. The Federal Tax Court could not stop lower courts from referring issues and had to cope with ECJ decisions that could undermine its own authority. In the end, the Federal Tax Court ended up applying the Treaties while it minimized the burdens of its decisions on the German tax system.

3. The Problems

Alter’s interpretation of the turnover tax struggle deserves several comments. Some go to the way in which she actually characterizes the preferences of national courts, others at the causal relations between judicial decisions and some at the underlying rationales that are offered. First of all, in her own explanation, courts are less concerned with their institutional power than what one might have expected. The Federal Tax Court is concerned about a floodgates problem that would affect the tax system, including lower courts and the German administration.119 In its reference to the ECJ, it suggested that other avenues of enforcement of the Treaty, such as suit by the EC Commission against Germany in front of the ECJ, should be preferred to deal with the problem. Such avenues, by the way, were much less empowering for the Federal Tax Court than keeping the cases under its jurisdiction. 117 ALTER [01], supra note 23, at 85. 118 Id. at 86. 119 She claims that lower courts were unconcerned about it but offers no evidence for that particular reading.

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Second, Alter seems to say that lower courts referred cases as a reaction to the Federal Tax court’s decision, but looking at the dates of the cases she reports, it seems that lower court references occurred before the two important Federal Tax court decisions in the Lütticke and Molkerei-Zentrale cases.120 On all counts, the initial reference by the Finanzgericht could not be a reaction to the Bundesfinanzgericht’s position. One starts to wonder whether all those lower courts were not in fact finding similar or related problems difficult to resolve. Moreover, the Federal Tax Court ended up making a reference, while it remains unclear that this was in its interest, taking into account the fact that previous decisions by the ECJ had been favorable to plaintiffs and not to the government. Third, Alter says that the Federal Tax Court wanted to negate direct effects to the Treaty, but the ultimate decision of the court actually used that doctrine to reach its decision. Alter may suggest that the Court could not disregard the ECJ’s case-law completely, but it is unclear what lead it to do so, since its decisions were final anyway Why attribute this ultimate result to strategic behavior, when it is actually what the law required?

In conclusion, the shift in national legal doctrine towards compliance with ECJ decisions –direct effect in particular here- that the “turnover tax struggle” illustrates is not readily explained by the bureaucratic model. Rather to the contrary, important elements of it seem to be related to the claims of the legal model or the team models. Judges cared more about the administration of justice and how to solve difficult legal questions rather than about their institutional interest.

B. Precedential Practices From Spanish Courts

Having reviewed a case study of Germany, I turn now to the study of the Spanish situation. The type of evidence that I consider is less historical in nature and more systematic. But it still does not seem to lend support to the bureaucratic or legal models. Rather it fits the predictions of the team model.

1. Data

I also use here the database I have built on Spanish EC law decisions 1986-2000. I considered the Spanish Constitutional Court and the Spanish Supreme Court as “high courts” and the rest as “lower courts”.121 I coded two aspects of those decisions. First, whether the decision cited the ECJ in the interpretation and application of EC law. Second, for those decisions that cited the ECJ, I coded whether the national court complied or not with the ECJ’s decision.122 I coded the national decision as compliant if the court said it was following a

120 Two decisions by the Bundesfinanzhof: July 11th, 1968 and October 29th, 1968. The references from lower courts are mainly from 1967. ALTER [01], supra note 23, at 84-85, footnotes 32, 35 and 36. 121 For more information on the courts included in the sample, see Appendix 2. 122 I counted as a citation for the purposes here all citations even if they are in the same national decision if they refer to substantially different issues of EC law that the court deals with. This is, if the national court cited different ECJ decisions on different issues of ECL, I counted that decision as two citations.

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doctrine or interpretation established by the ECJ and the rest of cases as non-compliant.123

Two important caveats should be born in mind. First, I take an internal perspective to the process and code as a compliant national decision situations where the national court says it is complying with that decision. Second, I only study compliance for decisions that actually cite ECJ decisions. I cannot make claims as regards decisions that merely apply EC law without citing and ECJ decision and thus I do not know whether those are compliant or incompliant decisions with ECJ case law.124

2. Results

I perform Fisher’s Exact Test125 on my data to test the association between ECJ citations or compliance with court level. I report two tables. The first table contains the proportion of Spanish EC law decisions that cite an ECJ decision taking into account the position of the court in the hierarchy. The second table takes only those decisions that cite the ECJ and codes the treatment given to the ECJ –compliance vs. incompliance- by court type also.

Citations to the ECJ in Spain by Court Level 1986-2000

Type of Court Lower Courts High Courts Total

No 185 65.37%

136 70.83%

321 67.57%

Yes 98 34.62%

56 29.16%

154 32.42%

ECJ Citation

Total 283 192 475 F = 1.546, df = 1, p = 0.2313

As regards citations, the results show that overall 32.42% of Spanish national decisions on EC law cite ECJ decisions. Lower courts cite the ECJ in 34.62% of the cases and higher courts in 29.16% of the cases. The difference between those two types of courts, however, does not seem to be statistically significant.

Compliance with ECJ Decisions in Spain by Court Level 1986-2000

Type of Court Lower Courts High Courts Total

No 16 15.38%

15 25.42%

31 19.01%

Yes 88 84.61%

44 74.57%

132 80.98%

ECJ Compliance

Total 104 59 163 F = 2.454, df =1, p = 0.1463

123 This last category includes cases in which the court either limited the impact of the ECJ’s decision, distinguished the case at hand from the ECJ’s or cited and dissented. 124 The same goes for Chalmers’s study. 125 Fisher’s Exact test is similar to the Chi-Square test but for binomial populations.

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As regards compliance, the results show that there are more lower court decisions (84.61%) that cite and comply with ECJ doctrine than higher court decisions (74.57%). However, the difference between the two proportions does not appear to be statistically significant. Overall, 80.98 % of national decisions that cite ECJ rulings comply with them.

3. Discussion

The tables above suggest that higher courts tend to cite and comply less with ECJ decisions than lower courts. But the differences are not statistically significant in any of the cases. Thus, it cannot be claimed that the institutional position of the court has an effect on the treatment given to ECJ decisions beyond what could be due to chance. Hence, the results do not fit the claims of the bureaucratic model, but rather those of the team or legal models to the extent that they predicted no substantial effects of hierarchy on compliance.

The tables also show that national courts do not cite ECJ decisions in the resolution of all cases. The proportion of Spanish decisions that cite the ECJ seems to be relatively small, but this is due to the fact that I included in my sample not only decisions in which problems of interpretation of EC law occur, but also decisions in which EC law is applied in general. Thus this proportion is certainly bigger when cases turn on questions of EC law only. Even taking into account all this, the results suggest that Spanish courts still consider the treaties, regulations and directives the primary sources of law on which they have to ground their decisions. ECJ decisions are considered and there is evidence of this, but only as a help in cases where complicated issues arise. This does not lend support to the legal model for if national courts considered ECJ decisions strictly obligatory, one would expect a higher usage of them. To the contrary, this fits better the logic of the team model in that courts usually will decide the case using written rules and recur to the ECJ’s case law on difficult points.

Further evidence against the bureaucratic model results from the fact that courts cite ECJ decisions but then do not comply with them. If decisions were cited strategically to diminish the likelihood of appeal, one would expect that a national court cite a decision to comply with it. Thus the levels of compliance should be very high. Of course, the national court has to respond to the demands and arguments of the parties to the case, but the truth is that from the perspective of the bureaucratic model, this would not matter to the judge. On the contrary, this phenomenon fits both the logics of the legal and the team model. ECJ decisions are either obligatory and then the court may jingle with the equivalence criteria, or even disagree, or ECJ decisions are one argument that the court considers in the process of deliberating as to the right decision of the case.

Turning to the levels of compliance, they may allow us to discriminate between the legal and the team models. The levels of incompliance are relatively high to claim that the observed phenomenon results from an obligation of stare decisiswith ECJ decisions. Whether such obligation exists is actually debated in Spanish legal scholarship and courts are not clear either. Consideration of the

44



results should take into account that I only study compliance by decisions that already have taken the step to cite the ECJ. According to the legal model, one would expect that if a court cites the ECJ and it is aware of a decision, compliance will ensue. The team model is more congenial to the results. Courts use the ECJ as a guidepost in the resolution of EC law cases. That incompliance remains high results from the innovative aspects of the ECJ’s jurisprudence, the fact that Spanish lawyers and judges are not used to the usage of precedent and the tensions that come with the integration of Spain into the EC.

C. Conclusion

After exploring the cases of Germany and Spain, the patterns of compliance with ECJ doctrines do not seem to vary substantially between lower courts and higher courts. I have tried to show that the legal and the bureaucratic models fail to explain the phenomena that can be observed. If there is any judicial cooperation, it takes the form predicted by the team model.

VI. CONCLUSION

The literature on legal integration uses two very different models of adjudication to explain some of the practices that one can observe in the EC court system: the legal model and the bureaucratic model. I have expanded the discussion with the usage of a model brought from the economic analysis literature: the team model. I have reviewed them here as well as the evidence in their support as regards three types of decisions relating to the phenomenon of judicial cooperation: the decision to refer a case to the ECJ, the decision as to what to refer and the decision as to whether to use ECJ rulings.

The structure of national adjudication is complex and the evidence is hard to interpret. Particular stories on the reception of the doctrines of direct effect and supremacy are single data points that can shed little light on the situation cross-nationally. Many empirical claims that have been made as regards references should be reconsidered because the indexes on which they are based are not properly interpreted and at other times because they do not control for other important variables. At the other extreme, some indexes that could be very useful are based on biased samples that make the analysis hard. The disagreements remain at the theoretical level, but they are also based on different operationalizations of the theories and empirical indexes.

However, I think that it can be concluded that after reviewing the evidence, one finds greater support for the team model as an explanation for the patterns of judicial cooperation that exist. I am not denying that there are no “politics” going on, but rather that they are not the paradigm that captures the ethos of adjudication in the institutions in which it takes place. Similarly, I am not arguing that law does not matter, but there are many aspects of judicial cooperation that are not captured exclusively by it. Using the wrong paradigm may put the emphasis on the wrong research and reform agenda. In the present discussion of the reform of the EC judicial system, advocates of maintaining the referral mechanism to all courts base their claims on the reluctance of high

45



courts to cooperate compared to the great willingness of lower courts. I find no support for these claims. National courts have developed adjudicatory practices that are efficient in a hierarchy and limiting references to higher courts would simply force lower courts to deal in more depth with EC law issues without affecting the effectiveness of the EC judicial system. The reallocation of resources that the team model predicts is in fact already taking place when national courts raise their standards of importance as to the questions that should be referred because the “ECJ should not be overburdened”.126 De minimis non curat praetor.

126 For examples of this see ARTICLE 177 EEC: EXPERIENCES AND PROBLEMS, supra note 11.

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APPENDIX 1: BUILDING A DATABASE ON NATIONAL COURTS

In this appendix I explain how I build a database on national courts, gathering information on caseload, among other things.

A. Sources of Information

Gathering data on the caseload and characteristics of courts in member states is not an easy task because the sources of information are decentralized. The following table is a general overview of sources that I have used and also some description about the number of data for caseload matters that I have gathered.

Member State Source Description of Data on Caseload

Belgium

Judicial Organization in Europe 2000 Statistical Yearbook of Belgium 1992 www.cass.bewww.just.fgov.be

For most courts, I have two data points (1992 and 1998). Cour de Cassation (1996-2000). Tribunal du Travail et Cour du Travail (1998)

Denmark Judicial Organization in Europe 2000 www.domstol.dk

For most courts, I have data for 1996-2000, except 1997. Byret (1996. Civil and criminal cases only). Labor Court (1998. Cases brought).

France

Statistical Yearbook of France 2001 Annuaire Statistique de la Justice 1997

For most courts, the data covers 1989/1990-1995 period. Cour d’Appel (Civil cases only).

Germany Statistical Yearbook of Germany 2001

The data covers the years 1996-1999. Amtsgeright, Landesgericht and Oberlandesgericht (Family Cases Excluded).

Greece Statistical Yearbook of Greece 1995, 2001 www.statistics.gr

Series from 1986-1990 and data from 1998. Civil Justice Only.

Ireland www.courts.ie www.laborcourt.ie

An Chuirt Chuarda (1998). An Chuirt Duiche (1994-1998). An Ard-Chuirt (1998. Cases Brought). An Chuirt Oibreachais (1997-1998). An Chuirt Uataracht (1998). Appeal Commissioners (1998. Cases Brought).

Italy www.istat.it www.giustizia.it

For most courts, data cover from 1996 or 1997 to 1999. Consiglio di Stato, Tribunale Administrativo Regionale (1996-1998). Pretura (1997-1998).

Netherlands

Judicial Organization in Europe 2000 www.rechtspraak.nlwww.raadvanstate.nl

For most courts I have two data points (1990 and 1995). Raad Van State (1997-2000). Centrale Raad Van Beroep (1996-1999). Tarieffcommissie (1998).

Portugal www.gep.mj.pt www.cstaf.mj.ptwww.sta.mj.pt

In general the data go from 1994 to 1997. Supremo Tribunal Administrativo (1990-1999). Tribunal da Relacao, Tribunal da Comarca (1993-1997).

Spain www.ine.eswww.mineco.es/tdc/

For most courts, the data covers the whole period (1989-1998). Tribunal de Defensa de la Competencia (1993-1997). Juzgado de Primera Instancia e Instrucción, Juzgado de Instrucción, Juzgado de lo Penal, Juzgado de lo Social (1994-1998).

UK

www.lcd.gov.ukwww.tribunals-review.org.uk www.scotcourts.gov.uk www.iaa.gov.ukwww.courtservice.gov.uk

For many courts I only have one data point (1998). Court of Session (1990-1998). Sheriff Court (1990-1998. Cases Brought).

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B. Description of the Dataset

These are the variables on which I gathered data: member state, year, court, court-Type (Lowest-Lower-Intermediate-High), references per year per court, caseload per year, subject-matter jurisdiction of the court (civil/commercial, criminal, labor, administrative and social security/tax), degree of specialization, the existence of appeal.

The dataset consists of an arrangement of observations in which each observation is the value of the variable for a particular court in a particular member state in a particular year. So, for example, the caseload of the court is the number of decisions rendered by a court, say the House of Lords, in a year –1989 for example-.

I cover the period of time from 1989 to 1998 for all member states except Austria, Finland and Sweden because they were not members of the EC for the whole period of study and Luxembourg for lack of available data. In total, the sample contained 1060 observations. This is, there are 106 courts and a time-series of 10 years for each court.

Some variables have the same value for the period I consider. For other variables, though, such as caseload, the value may change. Since the availability of this type of data varied, I had to complete many time-series with the average of the values for the years available.

C. List of Courts Included in the Database

This table is a general classification of the courts that are included in the database arranged by position in the hierarchy, but there are some distinctions to be made for the purposes of this study. The courts in normal typeface are those that are included in the sample to construct an index based on the proportion of references. The courts in italics are courts that are not included in that sample, but that have made a reference at some point and are considered in other parts of this investigation.

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MS Lowest Courts Lower Courts Intermediate Courts High Courts

B

Justice de Paix Tribunal de Police Bestendige Deputatie Comisión de Réclamation en Matière dÁssurance Obligatoire contre la Maladie et lÍnvalidité Conseil dÁppel dÉxpression Française de lÓrdre des Architectes

Tribunal de 1ère Instance [Civ. & Crim.] Tribunal de Commerce Tribunal du Travail

Cour d’Appel Cour du Travail

Cour de Cassation Conseil d’Etat

DK Faglige Voldgiftsre Klangen ‘vnet for Udbud

Byret Arbejdsretten So –og Handelsretten

Landsret Hojesteret

F Tribunal d’Instance Tribunal de Police Conseil de lÓrdre des Avocats

Tribunal de Grande Instance Tribunal de Commerce Tribunal Administratif Conseil des Prud’Hommes Tribunal des Affaires de Sécurité Sociale

Cour d’Appel Cour Administrative d’Appel


G Amtsgericht

Arbeitsgericht Landesgericht Sozialgericht Verwaltungsgericht

Landesarbeitsgericht Landessozialgericht Oberlandesgericht Obervelwaltungsgericht Finanzgericht Bundespatentgericht

Bundesfinanzhof Bundesgerichthof Bundessozialgericht Bundesverwaltungsgericht Bundesarbeitsgericht

EL Irinodikio Protodikio Diikitiko Protodikio

Efetio Diikitiko Efetio

Arios Pagos Simvoulio Epikratias Elengtiko Sinedrio

IR An Chúirt Dúiche An Chúirt Oibreachais Appeal Commissioners

An Chúirt Chuarda An Ard-Chúirt An Chúirt Uachtaracht

IT

Giudice di Pace Commissione Tributaria di Primo Grado Commissione Tributaria di Secondo Grado Commissione Tributaria Centrale Commissione Consultiva per le Infrazione Valutarie Consiglio Nazionale Forense Commissione dei Ricorsi contro i Provvedimenti dell’Ufficio Italiano Brevetti e Marchi

Pretura Tribunale

Corte d’Appello Tribunale Amministrativo Regionale

Corte Suprema di Cassazione Consiglio di Stato

LUX Tribunal de Paix Tribunal de Police Directeur des Contributions Directes et des Accises

Tribunal d’Arrondissement Tribunal Administratif Conseil Arbitral des Assurances Sociales

Cour d’Appel Cour Administrative Conseil Supérieur des Assurances Sociales


N Kantongerecht Commissie Van Beroep Huisartsgeneeskunde Scheidsgerecht van het Beambtenfonds voor het Mijnbedrijf

Arrondissementsrechtbank Gerechtshof Raad Van Beroep

Hoge Raad Raad Van State Centrale Raad Van Beroep College Van Beroep voor het Bedrijfsleven Tariefcommissie

P

Tribunal de Círculo Tribunal Tributário de 1ª Instância Tribunal Fiscal Aduaneiro Tribunal Administrativo de Círculo

Tribunal da Relaçao Tribunal Central Administrativo

Supremo Tribunal de Justiça Supremo Tribunal Administrativo

S

Juzgado de Paz Tribunal de Defensa de la Competencia Tribunal Económico-Administrativo Central Tribunal Económico-Administrativo Regional

Tribunal de Primera Instancia e Instrucción Juzgado de Instrucción Juzgado de lo Penal Juzgado Central de lo Penal Juzgado de lo Social

Audiencia Nacional Audiencia Provincial Tribunal Superior de Justicia [Social] Tribunal Superior de Justicia [Admin.] Tribunal Central del Trabajo

Tribunal Supremo

UK

Special Commissioner for Income Tax County Court Crown Court Magistrates Court Employment Tribunal Employment Appeal Tribunal Social Security Commissioner Social Security Appeal Tribunal Value Added Tax Tribunal Sheriff Court Immigration Adjudicator Immigration Appeal Tribunal Deputy High Bailiff´s Court Royal Court of Jersey

High Court Court of Session (Outer House) Court of Appeal House of Lords

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Unauthenticated

Dow

nload Date | 6/26/16 3:37 AM

The choice is certainly controvertible but I hope that it does not harm the basic organizational structure of national judiciaries. Particularly difficult to construct the table is the fact that sometimes there are only two instances of courts and at other times there are four. As regards high courts some aspects are worth noting. I do not strictly use the criterion that the Treaties use to identify courts that have an obligation to refer because some courts that fall under this category are not considered. But all the courts in the table classified as high courts are courts of last instance and thus have an obligation to refer. Most of those high courts hear cases as a third instance. This is, before the case is heard by the high court it has already been through two levels of the judicial hierarchy, the exceptions being the Bundesfinanzhof (2nd instance), the Bundesgerichthof hearing appeals from the Bundespatentgericht (2nd instance), the Consiglio di Stato (2nd instance), the Tribunal Supremo in administrative matters (2nd instance), the Centrale Raad Van Beroep (2nd instance), the College Van Beroep voor het Bedrijfsleven (1st and sole instance), and the Tariefcommissie (1st and sole instance).127 Most important of all, I do not consider constitutional courts. These courts have never sent a reference to the ECJ, except for the Italian Constitutional Court, but in a period that lies outside the scope of this study.

Since part of the purpose was to study how willing were courts to cooperate with the ECJ, the set of courts included are courts or bodies that have made a reference for a preliminary ruling to the ECJ. However, this original set of courts was modified in two senses: first, some courts were deleted because of the impossibility to find reliable data on them; second, some courts were added because although they had not made a reference during the period I consider, they had made a reference in previous or posterior years or otherwise were basic courts in the judicial structure of states so that it could be possible to think that they could have made a reference at some point. The following table is a list of added and deleted courts from the original set of courts.

127 Moreover, there are exceptions to the exceptions, particularly since very often the distribution of cases along the hierarchy of administrative courts is done on the basis of the status and position of the body that dictated the act that is subject to judicial review.

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MS Excluded Courts (References in Brackets) Added Courts

B Bestendigue Deputatie [1] Conseil d’Appel d’Expression Française de l’Ordre des Architectes [2]

None

DK Faglige Voldgiftsret [1] Klangen’vnet for Udbud [1] Arbedjsretten

F None None G None None

GR Elengtiko Sinedrio [1] None IR None An Chúirt Dúiche

IT

Commissione Tributaria di Secondo Grado o Regionale [2] Commissione Tributaria di Primo Grado o Provinciale [5] Consiglio Nazionale Forense [1] Corte dei Conti [2] Commissione dei Ricorsi contro i Provvedimenti dell’Ufficio Italiano Brevetti e Marchi [1] Commissione Tributaria Centrale [1]

None

N Commissie Van Beroep Huisartsgeneeskunde [1] None

P None Supremo Tribunal de Justiça Tribunal Tributário de 1ª Instância Tribunal Administrativo de Círculo

SP Tribunal Económico Administrativo Central [2] Tribunal Económico Administrativo Regional [38] Juzgado de Paz

UK Deputy High Bailiff’s Court [1] Royal Court of Jersey [2]

County Court Special Commissioners for the Purposes of the Income Tax Immigration Appeal Tribunal

APPENDIX 2: BUILDING A DATABASE OF SPANISH EC LAW CASES

I explain here the construction of the dataset on Spanish decisions on EC law that I use.

A. Description of the Dataset

The data was gathered as follows. I used three private databases that report national decisions: La Ley-Actualidad, Aranzadi TSJ-AP and Aranzadi RJ. For the Supreme Court, the Constitutional Court and the Dirección General de los Registros y del Notariado (DGRN), the Aranzadi RJ database was searched from 1986 to 2000. For the other courts, I used La Ley-Actualidad from 1986 to 1991 and Aranzadi TSJ-AP from 1992 to 2000. I determined the universe of potential cases by searching those databases for all cases under the EC Law topic, all that cited any EC Law instrument or the ECJ and some keyword searches. I limited my search to the highest courts and appeals courts and excluded all decisions by lower courts. This search rendered 4238 cases. From this universe, I drew a random sample stratified by year composed of 40 cases per year. For years with less than 40 cases (1986 to 1989), I included all cases. Any in which the court did not use EC Law as part of its reasoning or that was not rendered by a targeted court was replaced by the following case on the list. The sample was composed of 475 cases.128

128 I had to exclude 68 cases from my first draw (478), which represented 14.22% of the cases. Cases were excluded and replaced by the next available case on the list if they did not cite any EC law instrument or the ECJ except if one of the parties raised a point of EC law that the court did not address.

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The search as performed tries to minimize the problems of finding EC law cases and determining what counts as an EC Law case by adopting very broad criteria of search. In some sense, the database is constructed to observe the treatment of EC law cases rather than test compliance with what EC law requires or the ECJ has said in concrete terms.

B. List of Courts Included in the Sample

This is the list of the courts that I finally included in the sample.

Type of Court Name of the Court

Lower Courts

Audiencia Nacional Audiencias Provinciales Tribunal Central del Trabajo Tribunal Superior de Justicia Tribunal de Defensa de la Competencia Tribunal Económico- Administrativo Central Dirección General de los Registros y del Notariado

High Courts Tribunal Supremo Tribunal Constitucional

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Judicial Cooperation in the European Courts: Testing Three Models of Judicial Behavior

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Transcript of Judicial Cooperation in the European Courts: Testing Three Models of Judicial Behavior