Factors influencing the rate of preliminary references to the Court of Justice of the EU : the Maltese context

Abstract

The preliminary ruling procedure set out in Article 267 TFEU is regarded as the “jewel in the Crown” of the CJEU‘s jurisdiction and has proved to be a vital tool through which the CJEU could develop EU law. Even though its importance is widely recognised, studies have shown that the national courts of Members States resort to the use of this procedure to varying extents. This wide variation has puzzled scholars for a number of years with the result that various theories have been put forward in an attempt to explain this variation. Furthermore, these theories have been grouped under various headings with one notable classification dividing these theories under structural and behavioural headings. The theories falling under the former heading include structural factors - such as population size - within a Member State whilst those falling under the behavioural heading concern the national court‘s behaviour when it must decide on whether to make a reference. Studies show that both types of factors have an impact on the reference rate of a Member State. In light of the fact that the Maltese national courts have only sent two references for a preliminary ruling in more than ten years of EU membership, this research project sets to apply the theories classified as behavioural factors to the local scenario. In turn, this will help identify the factors that have an effect on the local judiciary when deciding on whether to make a reference to the CJEU, and possibly also shed some light on the reasons behind the nominal use of this procedure by the Maltese courts. Through the use of traditional doctrinal research and quantitative research involving a questionnaire distributed to the Maltese members of the judiciary, the results of the research showed that the local judiciary are mostly influenced in their decision on whether to make a preliminary reference to the CJEU by their knowledge of EU law on the matter at hand, public support for EU integration and the time that elapses before a preliminary ruling is delivered by the CJEU.