The politics of judicial discretion: Rethinking the interaction between national courts and the Eurpean court of justice

Abstract

The recognition that courts play a significant role in the process of European integration has focused attention on the interaction between national judges and the European Court of Justice. The prevailing theoretical model of this interaction holds that a variety of incentives impel national judges to co‐operate with the ECJ by providing it with frequent preliminary references. This article tests the ability of the model to account for the behaviour of national courts during the period 1972–94. In assessing the utility of the model two central claims are made. First, that the model as currently constructed is incapable of explaining the patterns of references originating from various member states, particularly the consistent lack of references from British courts. Second, that the level of British references, and patterns of judicial co‐operation in general, can be better understood by questioning the model's core assumption ‐ that national judges face powerful incentives to refer to the ECJ. As a first step in this direction, the article examines how the discretion to make or withhold references bestows on national judges the power to hasten or retard the pace of integration as well as to influence specific policy outcomes.