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Wine and Discussion with Jasper Krommendijk

dinsdag 12 december 2017Plaats in agenda
15:30 tot
Grotius Building Room: 2.130 - Montessorilaan 10 Nijmegen
Jasper Krommendijk
To refer or not to refer; That's the question

There are growing indications that the preliminary ruling procedure, arguably the most important one in EU law, is not functioning optimally. Firstly, national courts appear frequently unwilling to refer, or simply lack the necessary knowledge of Union law and the possibility to engage the CJEU. Secondly, the implementation of CJEU judgments by national courts can be regarded as far from ideal, also because some judgments only contain a limited number of arguments, unpersuasive reasoning, or fall short of providing an unequivocal answer. Given these two problems, it is crucial to map how national courts actually utilise the preliminary reference procedure, why they choose to refer (or not) in practice.

These questions will be addressed during this meeting on the basis of innovative new research. Kelemen will show that the pattern and pace of the EU’s domestic entrenchment is shaped by pre-existing state institutions – particularly by the organization of domestic judiciaries. In his paper, which he wrote together with Pavone, he compares patterns of reference activity across France – a unitary state with a centralized judiciary – Italy – a weaker unitary state with a centralized judiciary – and Germany – a federal state with a decentralized judiciary. He uses an original geocoded dataset of preliminary references from national courts and leverage Geographic Information Systems (GIS) technology, statistical analysis, and qualitative evidence to demonstrate that the subnational reach of Europe’s supranational legal order remains conditioned by domestic institutions.

Krommendijk will present his findings for the use of the preliminary ruling procedure by Dutch courts in the field of migration on the basis of interviews with those judges as well as a legal analysis of  judgments. Most Dutch judges have been content with the functioning of the preliminary ruling procedure, the dialogue with the CJEU and the judgments of the CJEU. Judges have referred for predominantly legal reasons, referring simply because EU law is unclear. Only in a limited number of cases have more legal-political strategic reasons - identified in the literature, including judicial empowerment and bureaucratic politics - played a role.

Claassen will sketch some trends in the referral practice of courts in Germany, Austria and the Netherlands based on some quantitative data. He will show that the number of references in several legal fields differs greatly. He will present some tentative hypotheses for this phenomenon.


15.30-16.15: Jasper Krommendijk (RU) - It takes two to tango. The preliminary reference dance between the CJEU and Dutch courts in the field of migration.
Discussant: R. Daniel Kelemen (Rutgers University)

16.15-16.25: Jesse Claassen (RU) - Es braucht zwei zum Tango. German, Austrian and Dutch references compared. Some preliminary quantitative findings

16.25-17.15: R. Daniel Kelemen (Rutgers University) - The political geography of European legal integration
Discussant: Elspeth Guild (RU/ Queen Mary, University of London)

Note that people who are interested to read the paper of Jasper Krommendijk (beforehand) could send him an email: j.krommendijk@jur.ru.nl

Karin Zwaan

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