Umeå universitets logga

While domestic judges ultimately decide whether to refer questions to the Court of Justice of the European Union (CJEU), little is known about how the idea to refer is introduced in national litigation or about the decision not to refer. The preliminary ruling procedure (PRP) allows the CJEU to safeguard the uniformity of EU law, but that task can be hindered when national courts withhold questions. This article explores how often questions are sent to the CJEU compared to decisions not to refer, and to what extent referrals are driven by national judges acting on their own motion as opposed to the parties. Despite challenges in accessing such data, an analysis of 728 referred and non-referred cases from all Swedish courts reveals that, although the PRP formally excludes party involvement, it is mostly the parties who raise the issue. However, they often struggle to have their questions referred. Importantly, 42 per cent of the questions sent came from judges acting on their own initiative, sometimes against the parties’ wishes. Courts with a duty to refer show the highest tendency to request preliminary rulings, likely in part due to their legal obligation. These findings suggest that both judges and parties should be viewed as co-drivers of the PRP, nuancing narratives that emphasise one over the other. Nevertheless, most questions of EU law remain at the national level, adding to the large pool of questions that never reach the CJEU.

The Court of Justice of the European Union (CJEU) portrays the preliminary ruling procedure (PRP) as a dialogue between itself and national courts in which parties play a secondary role. Under this conception, what duty does national judges have to justify when they decide not to request a preliminary ruling? While both the CJEU and the European Court of Human Rights (ECtHR) have case-law on this matter, the expectations placed on national courts remain unclear. This article clarifies what is expected by outlining the purpose, applicability and extent of the duty to give reasons for non-referral. It shows that the duty arises primarily in party-led initiatives before courts of last instance, and that the required reasoning depends on the diligence of the party’s request. This has constitutional implications: by highlighting the parties, the duty partially transforms the PRP, marking a departure from their traditional exclusion from the procedure. Yet, reliance on party requests leaves gaps in absence of such initiatives. This article argues that the duty should also be understood in the logic of Article 267(3) TFEU – requiring apex courts to justify non-referral on their own motion, in line with their obligation to refer.

This article examines how Swedish courts justify decisions not to refer questions to the Court of Justice of the European Union (CJEU). It is based on an analysis of 668 non-referral decisions across all court types and levels. By identifying the reasons provided, this article evaluates the explanations judges consider legitimate for nonreferral, and compares these with the legal obligation to give reasons. The findings reveal a nuanced picture of how Swedish courts approach reasons-giving within the preliminary ruling procedure (PRP), highlighting both commendable and questionable practices. Courts of last instance predominantly rely on the CILFIT exceptions, particularly the irrelevance of EU law, followed by acte éclairé, while acte clair is used only infrequently. Lower courts commonly resort to vague formulations such as “no reason to refer”. Such minimal reasoning may reflect reluctance to engage with the PRP, thought it may also stem from legalistic considerations. In any event, a few more words explaining why no questions were sent could go a long way in building trust in how the Swedish judiciary handle the PRP, both from the perspective of the parties and the Union legal order.