National courts and the European Court of Justice: a public choice analysis of the preliminary reference procedure

The paper analyses the growth of references for preliminary rulings of the European Court of Justice as the equilibrium outcome of the optimising behaviour of litigants, who demand preliminary rulings, national courts, which are the gatekeepers of the process, and the European Court of Justice, which supplies the rulings. The observed pattern is attributed to economic and political factors, including intra-EC trade, the absence of a service charge in using the preliminary references system, the terms by which private litigants access the national courts, and the empowerment of national judges against their own national authorities brought about by the mechanism. (C) 2004 Elsevier Inc. All rights reserved.