The Member States and the Court of Justice - Why do Member States participate in preliminary reference proceedings?

Abstract

The aim of this thesis is to make a first attempt to establish why Member States decide to send observations to the Court of Justice of the European Union (CJEU or Court) in the preliminary reference procedure. There is a strong debate in the academic literature about the degree to which the CJEU can further European integration, independent of the preferences of the Member States. Earlier research has conceptualised the observations that Member States submit in proceedings before the Court as threats from the Member States to override the Court or to not comply with its ruling. The debate is about how credible these threats are. In contrast, legal scholars believe that the observations can have an influence based on the soundness of the arguments they use. This thesis will turn the focus away from the Court and toward the Member State governments. This will enhance the understanding of the complex relationship between the EU Member States and the Court of Justice, thus informing the theoretical debate. The analysis is based on interviews with civil servants in the Netherlands and Sweden. The empirical finding of this thesis is that Member States submit observations to defend national interests, legislation, and policies. Moreover, the civil servants have a very lawyerly view of the whole process. They talk about ‘winning’ cases, some describe themselves as barristers, and they believe legal argumentation and legally relevant information are the main channels through which the Court can be influenced.