Swedish judges’ motives in the preliminary ruling procedure: A matter of law, strategies and professional norms


by Karin Leijon, Uppsala University

The judicial dialogue between the Court of Justice of the European Union (CJEU) and national courts in the preliminary ruling procedure (Article 267 TFEU) is regarded as crucial for the functioning of the EU legal system because it aims to ensure a uniform application of EU law in all member states. The procedure allows (and sometimes requires) national courts that are unsure about how to interpret the EU legal provision in a case to submit a question to the CJEU and ask the supranational court to provide a preliminary ruling on the matter.

Why national courts either engage in the procedure or refrain from doing so is important for understanding the driving forces of EU legal integration. In my recently published JCMS article, I explore the circumstances under which national judges rely on different considerations, such formal rules, personal preferences and professional norms, when making decisions in the preliminary ruling procedure. I find that the judges’ motives for action vary depending on the prescriptive clarity of EU legal frameworks but not exactly how we would have expected it to. I further show that judges find themselves to be bound to follow both formal EU law and non-written professional norms regarding how judges “should” behave when interacting with the supreme EU court. This suggests that if we want national courts to be more active in the preliminary ruling procedure, professional norms are an important tool.

Logics of human action and prescriptive clarity of legal frameworks

Under what circumstances are we acting based on calculations of expected consequences, and under what circumstances are our actions following from what formal (and informal) rules prescribe as appropriate?  One answer to this perennial question in social science research is that how actors choose to behave and make decisions will vary depending on the prescriptive clarity of legal frameworks. We expect that if legal frameworks have a high degree of clarity, meaning that they are precise, consistent, and binding, then these frameworks will provide actors with clear behavioural guidance. A legal framework that has a high degree of prescriptive clarity makes it more likely for an actor to follow the rule-bound logic of appropriateness than the logic of expected consequences when making decisions. In contrast, when legal frameworks are unclear, actors are expected to make decisions based on the logic of consequences. The low clarity of the legal framework makes space for discretionary action, making it possible for actors to pursue their (self-) interests.

National judges’ key choices: Whether to request preliminary rulings and whether to include statements in the request

First, the judges were asked about their reasons for (or for not) requesting a preliminary ruling from the CJEU. This decision-making situation is regulated by relatively clear legal framework and the judges are therefore expected to express rule-bound motives for action, for example that a request was made because the interpretation of EU law was considered contested and that it then follows from EU law (Article 267) that a request should be made. Second, the judges were asked about their reasons for (or for not) including a statement in the request for a preliminary ruling expressing how they believe that the legal case at hand should be resolved. This decision-making situation is regulated by relatively unclear legal framework, suggesting that judges do not express rule-bound motives for action. Instead, judges are assumed to base their decisions on consequentialist considerations such as deciding to include a statement in the request for a preliminary ruling as a way to influence the CJEU’s interpretation of EU law.

Swedish judges’ motives for action: A mix of considerations

The responses from the interviewed Swedish judges partly support the expectations regarding how clear or unclear legal frameworks matter for judges’ decision making. Contrary to expectations, when EU legal frameworks are clear, the judges did not only consider those frameworks. Instead, they expressed that they also considered professional norms and expected outcomes. For example, some of the judges stated that they decided to refer cases to CJEU to avoid the blame for unpopular decisions, a typical consequentialist motive:

“In our case, for example, it was a scapegoat function really, very clear, one could say. (Q: How do you mean?) It’s not we who are setting aside Swedish law, but it’s actually the European Court of Justice that says that we have to do it—’Look, our hands are tied’—it’s a pretty good feature [of the EU legal system]” (High court judge)

When the clarity of the EU framework is low the judges mainly motivate their decision by invoking professional norms and not consequentialist considerations. Approximately half of the respondents said that they did not state their views in the requests because they found such opinions to be incompatible with the national courts’ role within the EU legal system. The respondents perceived that the expression of opinions undermined their impartiality, as illustrated by the following quote:

“The [national] court should not state its position on the matter because the legal process continues. You have to be impartial until the final decision is made; it’s a basic judicial norm (High court judge).”

Some of the other motives Swedish judges expressed, such as a fear of being criticized and lack of knowledge of EU law are in line with the results from previous work on Dutch, Italian, Croatian and Slovenian judges.

A matter of clarity of both EU legal frameworks and professional norms

The main takeaway of the study is that to understand the actions of national judges in the preliminary ruling procedure we must take into account how not only the clarity of EU legal frameworks but also how presence and clarity of informal norms of appropriate professional conduct may influence the judges’ decisions-making.

This finding led to the following reformulation of expectations regarding clarity of rules and national judges. When legal frameworks are unclear, the uncertainty of the situation leads judges to ask themselves, ‘What is the basis of my professional identity?’ rather than ‘What is the best decision given my personal preferences?’. That is, the lack of clear legal rules makes judges unsure about the discretion they have in a given situation. Instead of consequentialist considerations, judges rely on norms related to their professional role, (such as being impartial). In contrast, when formal rules are clear, then national judges are able to determine which aspects of the procedure, if any, are not regulated. Based on this information, judges can identify the level of discretion they have. That is, judges are aware of what parts of the decision-making process are not guided by formal rules, and in these instances, they may base their decisions on any type of consideration, including consequentialist ones regarding preferred outcomes (such as avoiding blame).

These propositions should be tested in other member states to shed further light on what drives the actions of national judges in EU legal integration.

Dr. Karin Leijon is a researcher at the Department of Government, Uppsala University. You can find her academic profile here. Follow Dr. Karin Leijon on Twitter @koritchi and Uppsala University Department of Government @UU_PoliSci.