| How do the European Court of Justice and national courts maneuver within the EU judicial process? Answering this question addresses the broader debate within EU research between intergovernmentalists and neoinstitutionalists concerning EU institutions as either driven by Member State preferences or independent actors. This project adopts a neoinstitutionalist approach and argues that courts are independent strategic actors in pursuit of increase autonomy within their legal systems. To examine this hypothesis, the research focuses upon three main junctures within the preliminary reference process: the national court decision to refer a case, the ECJ's treatment of the referral, and the following national court implementation. It is argued that national courts will include preliminary opinions with reference questions to increase the likelihood that the ECJ decision reflects the interpretation advanced by the national courts and that the latter does not lose control of certain areas of national law to the ECJ. The ECJ, to increase its own autonomy and deepen legal integration, employs the ability to redefine the issues in a case through issue definition, i.e. adding and/or suppressing questions presented. Finally, national courts will overwhelmingly comply with the decisions of the ECJ. Nevertheless, if they are faced with a ruling that they either cannot or do not want to implement, national courts can evade such a decision through re-referral and re-interpretation of the facts of the case. Strategies of this nature are not exercised by courts in every case, but rather, are a function of the legal system, issue salience, and compliance on the part of the other court. In addition, the project compares the use of issue definition by the ECJ to that of the U.S. Supreme Court to determine whether courts that share certain similarities but have varying levels of institutional freedom employ issue definition in the same manner. |
