Altruism, Euro-Expertise and Open EU Legal Opportunity Structure: Empirical Insights on Legal Mobilization Before the CJEU in the Migration Field
25 Pages Posted: 23 Mar 2021
Date Written: September 1, 2020
Over the years, many theories have tried to explain the puzzle of cross-national variation in preliminary reference rates before the Court of Justice of the European Union. Some authors focused on inter-court competition, others focused on national legal culture and Euroscepticism, others highlighted the importance of judges’ attributes such as their EU legal education and workload. This article, relying on a comparison of three country case studies in the field of migration law, makes the case that in order to understand the use of the preliminary reference procedure, we must also take into account national patterns of legal mobilization. Utilizing empirical qualitative research the article identifies three national-level conditions that help explain the emergence of legal mobilization through preliminary reference: Altruism, Euro-expertise, and an open EU legal opportunity structure. The article makes both an empirical and a theoretical contribution by bridging the scholarship on legal mobilization and EU judicial politics.
This paper was awarded the Ius Commune Prize 2020, see https://www.iuscommune.eu/
Keywords: Court of Justice of the EU, legal mobilization, EU migration law, EU judicial politics, preliminary reference procedure,
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