“ The European Court of Justice and National Courts : Strategic Interaction within the EU Judicial Process ”

This paper presents the results of a pioneering venture into opening up the black box of the EU judicial process and determining how the European Court of Justice and national courts work together. The project investigates the effects of certain independent variables legal system experience, issue transparency and compliance upon courts’ decisions to maneuver strategically within the referral process in the pursuit of their own agendas. The findings indicate trends in the employment of strategic maneuvering that elucidate how courts interact with one another, as well as the role that courts take on during the development of a fledgling political system. In addition, the findings provide empirical evidence concerning whether Member States’ preferences or courts’ pursuit of their own agendas have driven the referral process. The results obtained support neoinstitutionalist claims that it is courts working in pursuit of their goals, rather than those of the Member States, that have driven courts to maneuver strategically within the EU judicial process. Furthermore, in their attempts to attain their own goals, courts have helped to create a legal uniformity among the Member States’ systems crucial to the development of a new community. Why study the interaction between national courts and the European Court of Justice (ECJ)? There are three main reasons. First, the European Union’s (EU) preliminary reference process allows national courts to send questions pertaining to EU law to the ECJ in a specific case, which thereby enables them to go outside the national legal boundaries to the European legal level to solve a national case. Specifically in the case of Irish courts, it has been argued by Ailbhe Smyth that “typically, when the judgments delivered by Irish courts have been unsatisfactory or unworkable, the tendency has been to turn to the European courts for more liberal interpretations” (Smyth 1992, 115). Hence, the European Court of Justice is viewed as an alternative means of achieving a certain desired verdict that may be unlikely based solely on internal, national law. Examining the employment of EU law within a national case is akin to investigating the employment of U.S. federal law within a state case, as novel today within the EU as it was two hundred years ago when the U.S. was still attempting to become a ∗ This material is based upon work supported by the National Science Foundation under Grant No. 9904983.