JCMS 2024 Volume 62. Number 2. pp. 468–486

DOI: 10.1111/jcms.13511

A Matter of Prescriptive Clarity? Analysing How Swedish
Judges’ Motives for Action Vary in the Preliminary Ruling
Procedure
KARIN LEIJON

Department of Government, Uppsala University, Uppsala

Abstract
This article explores how national judges’ reasoning in the preliminary ruling procedure varies depending on the prescriptive clarity of European Union (EU) legal frameworks. Drawing on the
logic of appropriateness and the logic of expected consequences, this article formulates hypotheses
regarding judges’ motivational patterns. Interviews with Swedish judges generate ﬁndings thatpartly corroborate these hypotheses. The ﬁndings show that when EU legal frameworks are clear,judges express a mix of considerations, including references to EU rules, expected
politico-strategic outcomes and professional norms. When the clarity of the frameworks is low,
judges mainly motivate their decisions by invoking professional norms. In light of these ﬁndings,
the article proposes a revision of the compliance pull explanation that takes into account how not
only formal EU rules but also informal norms of appropriate professional conduct may inﬂuence
the actions of national judges.
Keywords: CJEU; logic of appropriateness; logic of consequentialism; national judges; preliminary
ruling procedure

Introduction
Research has shown that national judges express a wide variety of reasons when
explaining their decisions to either engage in the preliminary ruling procedure [Article
267 Treaty on the Functioning of the European Union (TFEU)] or remain passive(e.g., Glavina, 2019; Jaremba, 2013; Krommendijk, 2021; Leijon and Glavina, 2022;
Mayoral and Pérez, 2018; Pavone, 2018). Some motives identiﬁed in this context support
the assumption in legalist theory that judges are guided by the ‘compliance pull’ of
European Union (EU) law (Hübner, 2018, p. 1818; Weiler, 1994); other reasons, however,support the proposition that judges participate in the procedure to become judiciallyempowered (Alter, 2001; Burley and Mattli, 1993; Nyikos, 2006) or the expectation thatjudges avoid the procedure to shield the national legal order from EU law intrusions(Golub, 1996; Wind, 2010). Time is therefore ripe to explore the circumstances underwhich national judges can be expected to rely on different considerations in theirdecision-making. This article aims to contribute to our understanding of why judges’
motives vary by exploring one type of situational factor that is believed to inﬂuenceactors’ reasoning, namely, the ‘prescriptive clarity’ (March and Olsen, 2008, p. 703) oflegal frameworks (Dörrenbächer, 2017; Egeberg, 2007; March and Olsen, 1998).
To answer the question of whether and how national judges’ reasoning varies depending on the prescriptive clarity of legal frameworks, this article ﬁrst develops hypothesesby combining insights drawn from theories on the logic of appropriateness and the logic© 2023 The Authors. JCMS: Journal of Common Market Studies published by University Association for Contemporary European Studies and John Wiley & Sons
Ltd.
This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and reproduction in any medium,provided the original work is properly cited.

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of consequentiality (March and Olsen, 1989) and the literature on national courts in EU
legal integration. What is proposed is that judges are likely to be guided by the compliance pull of EU law if the rules that regulate a speciﬁc decision-making procedure havea high degree of prescriptive clarity; that is, they provide judges with clear behavioural
guidelines. Conversely, if the rules are less precise, then other motives, such as personal
and politico-strategic preferences or, alternatively, informal rules of appropriateness andprofessional conduct, are expected to inform judges’ decision-making.
Second, this article conducts a plausibility probe (Levy, 2008) to determine whether
any of the hypotheses receive broad support, in which case more systematic testing of
the expectations is warranted. Empirically, the article investigates Swedish judges’ motives for action with respect to two central decisions in the preliminary ruling procedurethat differ with regard to the prescriptive clarity of the formal legal frameworks:(1) whether to refer cases to the Court of Justice of the European Union (CJEU) and(2) whether to include opinions in requests for preliminary rulings. Interviews with
Swedish judges generated ﬁndings that partly corroborated the theoretical expectations,suggesting that further tests of the hypotheses are warranted. The results show that when
the prescriptive clarity of EU legal frameworks is high, judges express a mix of considerations, including references to EU rules, expected politico-strategic outcomes and professional norms. When the clarity of EU rules is low, judges mainly motivate their decisions
by invoking informal rules of appropriate professional conduct. This article theorises
about how the results can be understood in relation to the logic of prescriptive clarityand proposes a revision of the compliance pull explanation in legalist theory that accounts
for not only the ways in which formal EU rules may inﬂuence the actions of national
judges but also the ways in which informal rules of appropriate conduct do so.
This article proceeds as follows. The ﬁrst section presents the literature on the behaviour of national judges in the preliminary ruling procedure. The second section develops
theoretical expectations regarding the circumstances in which compliance pull motives orpolitico-strategic considerations inform national judges’ decision-making. The third section describes the study’s design. The fourth section presents the results of the empiricalanalysis. The ﬁnal section discusses the implications of the empirical ﬁndings.
I. The Driving Forces Behind National Judges’ Action in the Preliminary Ruling
Procedure
Theories on European integration mainly characterise national judges as strategic actors(Conant, 2007; Dyevre, 2010; Nyikos, 2006) who, at least in part, are driven by a wish
to promote their own interests, which are referred to as politico-strategic motives for action (Krommendijk, 2021). The judicial empowerment thesis provides a prime example ofwhat such strategic considerations entail by proposing that the motive that informs
judges’ decisions to request preliminary rulings is their wish to increase their own inﬂuence vis-à-vis other branches of government. National judges are thus expected to participate in the preliminary ruling procedure because the EU legal system provides them withstrong judicial tools for monitoring political actors, namely, the power to review whether
a national provision is compatible with EU law (Alter, 2001; Burley and Mattli, 1993;
Weiler, 1991). Although the empirical support for these assumptions is mixed, studies
have shown that Dutch and Spanish judges have requested preliminary rulings from the© 2023 The Authors. JCMS: Journal of Common Market Studies published by University Association for Contemporary European Studies and John Wiley & Sons
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Karin Leijon

CJEU to force the domestic legislator to change policies that the national judges had considered to be in violation of EU law (Krommendijk, 2021; Mayoral and Pérez, 2018).
Alter (2001) nuances the argument of judicial empowerment by suggesting that due tointer-court competition, it is predominantly lower court judges who gain new powers
from sending questions to the CJEU. By using the CJEU’s responses, lower courts candeliver rulings that the highest domestic courts must accept. Moreover, national supreme
courts, which used to be at the top of the domestic judicial hierarchy, have been demotedin the face of the supremacy of EU law and therefore have fewer incentives to participate
in the preliminary ruling procedure. In addition, these courts’ ability to reverse lower
court rulings has been circumscribed. However, Pavone and Kelemen (2019) argue thatthese explanations proved self-eroding over time and that there has been a shift in the
structure of incentives in domestic high courts. As the EU legal order has become more
entrenched, the incentive for high courts to submit references to the CJEU has increased,
as this has helped them to limit lower court challenges and control the dialogue with the
CJEU to inﬂuence the development of EU law.
The sustained resistance account (Pollack, 2013, p. 1271) provides a strategic explanation for national judges refraining from engaging in the preliminary ruling procedure. The
argument is that national judges avoid referring cases to the CJEU to defend national sovereignty (Dehousse, 1998; Wind, 2010) and remain in control of policy outcomes(Golub, 1996, p. 381). By not referring cases, national courts deny the CJEU the opportunity to issue binding responses to questions of EU law that have arisen in domestic legal
cases. Research on the behaviour of supreme court judges in the Netherlands and the UK
has shown that these judges frequently withhold references from the CJEU to prevent interpretations of EU law that would have a negative effect on the national legal system(Golub, 1996; Krommendijk, 2021, p. 162).
In contrast to these politico-strategic accounts, the compliance pull explanation, whichis part of legalist theory, proposes that it is mainly legal factors that inﬂuence judges’ decisions in the preliminary ruling procedure (Hübner, 2018, p. 1821; Weiler, 1994, p. 521).
The starting point of this explanation is that national judges initially accepted the CJEU’s
authority and the preliminary ruling procedure because the supranational court is composed of senior members of the national judiciaries and use a ‘language of reasoned interpretation, logical deduction, systemic and temporal coherence’ when communicating withnational courts (Weiler, 1994, p. 521). Expanding on the compliance pull explanation regarding judges’ decisions on whether to request a preliminary ruling from the CJEU,
Hübner (2018) proposes that national judges refer cases to the EU court because they
are professionally bound to follow the legal procedures laid down in Article 267 TFEU,
and it is their responsibility to ensure that EU law is interpreted correctly in the case athand. According to Hübner (2018), whether national judges decide to refer cases to the
CJEU depends on whether they ﬁnd that they need help with ‘specifying the validity
and interpretation of acts’ (p. 1825), as stated in the formal EU rules that regulate the procedure (Article 267 TFEU). Although this explanation has not been able to account forvariations in the number of referrals from courts in different member states (Alter, 2001),
interviews have revealed that Dutch and Irish judges strictly abide by formal EU rules(Krommendijk, 2021).
Apart from the motives described above, studies have shown that judges also motivate
their decisions not to refer cases based on a lack of knowledge about EU law© 2023 The Authors. JCMS: Journal of Common Market Studies published by University Association for Contemporary European Studies and John Wiley & Sons
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(Pavone, 2018) or a lack of time (Glavina, 2019; Krommendijk, 2021). Moreover, judges
often have multiple reasons for referring cases to or withholding cases from the CJEU
(Jaremba, 2013, p. 313).
II. Logics of Action and Prescriptive Clarity
The concept of prescriptive clarity originates from an attempt to ﬁt the two fundamental
logics of human behaviour, that is, the logic of appropriateness and the logic of consequentiality, into a single theoretical framework (March and Olsen, 1998, 2008). The theoretical basis for the logic of appropriateness resembles that of the legalistic compliancepull explanation; both accounts understand human action as being rule-bound and as aprocess of matching the obligations of one’s identity to a speciﬁc situation. In contrast,
the logic of consequentiality assumes that individuals act based on their calculations of
expected outcomes, such as anticipated personal beneﬁts; this assumption underlies the(politico-strategic) theories of judicial empowerment and sustained resistance.
According to March and Olsen (1998), most human action contains elements of boththe logic of appropriateness and the logic of consequences. However, the relative significance of these logics is assumed to vary across different situations and issues(Goldmann, 2005, p. 43; March and Olsen, 1998). The concept of prescriptive clarity proposes that actors are guided by different logics depending on the circumstances and that a
clear logic of action will prevail over a logic that is less clear (March and Olsen, 1998,2008). Consider a situation in which the rules of appropriateness, such as legal frameworks, are precise, consistent and binding. These types of frameworks are assumed toprovide actors with clear behavioural guidance. All else being equal, a legal frameworkthat has a high degree of prescriptive clarity makes it more likely for an actor to follow
the logic of appropriateness than the logic of expected consequences when making decisions (March and Olsen, 2008, p. 703).
In contrast, when legal frameworks are unclear and provide actors with little behavioural guidance, the ﬁrst expectation is that actors will make decisions based on the logic
of consequences (March and Olsen, 1998). The idea is that formal rules that entail a low
degree of prescriptive clarity make space for discretionary action, making it possible foractors to pursue their interests. The second and alternative expectation is that in situations
in which legal frameworks have a low degree of prescriptive clarity, actors rely on the behavioural guidance provided by informal norms of appropriateness rather than on strategic calculations. Informal norms of appropriateness are described as shared beliefs about
the obligations that are attached to a speciﬁc role or an identity (March and Olsen, 1998).
In the judicial context, these shared beliefs include principles such as the upholding of theintegrity of the judiciary (Clayton and Gillman, 1999, p. 15).
Applied to the EU context, one would expect that when EU legal frameworks have ahigh degree of prescriptive clarity, compliance pull motives (based on the logic of appropriateness) dominate the substantive reasoning of national judges. If EU rules, on theother hand, have a low degree of clarity, personal interests such as politico-strategic considerations (based on the logic of consequences) or informal norms of appropriate conduct (based on the logic of appropriateness) guide judges in their decision-making.
Whilst the relative prescriptive clarity of legal frameworks is believed to play a central
role in understanding the relationship between these different logics of action, human© 2023 The Authors. JCMS: Journal of Common Market Studies published by University Association for Contemporary European Studies and John Wiley & Sons
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A matter of prescriptive clarity?

Karin Leijon

behaviour involves complex interactions between legal frameworks, norms, expectedconsequences and other factors, such as the familiarity of a situation or time constraints (March and Olsen, 2008). In the preliminary ruling procedure, factors that inﬂuence judges’ decision-making may include the varying factual clarity of the casesthat national judges adjudicate (Hübner, 2018). Whilst this article acknowledges theimportance of taking into account these types of factors to achieve a complete understanding of the behaviour of national judges, this ﬁrst attempt to explore variations injudges’ motives focuses on the prescriptive clarity of EU legal frameworks. This delimitation allows for an in-depth investigation of the proposition from legalist theory
that judges are primarily guided by the compliance pull of EU law. That is, judges
are assumed to follow the logic of appropriateness. In addition, given their professional role in upholding the law, judges are the types of actors for whom the prescriptive clarity of legal frameworks can be considered a very important, if not the most important, factor.
Moreover, the fact that the level of clarity of actors’ (self-) interests is also likely tovary across situations must be emphasised (March and Olsen, 2008). However, basedon previous research, this article assumes that the prescriptive clarity of national judges’
interests is high in the context of the preliminary ruling procedure, at least with regard to
the two decision-making situations that are the focus of this study. For instance, referringa case is believed to increase judges’ power vis-à-vis the executive and the legislature(Burley and Mattli, 1993), and judges’ expression of opinions has been described as away to inﬂuence the CJEU’s ﬁnal rulings (Nyikos, 2006). Although the incentive structure may be different for high court judges than for low court judges (Alter, 2001; Pavone
and Kelemen, 2019), the interests related to those incentive structures are clear. For thisreason, it is more relevant to focus on the relative clarity of EU legal frameworks thanon judges’ interests.
The Prescriptive Clarity of the Rules That Regulate the Preliminary Ruling Procedure
National judges are faced with two decisions in preliminary rulings: (1) whether to refercases to the CJEU and (2) whether to include opinions in requests for preliminary rulings.
This article argues that these decision-making situations differ with regard to the prescriptive clarity of EU legal frameworks.
Considering the judges’ ﬁrst decisions regarding whether to refer a case concerning theinterpretation of EU law to the CJEU, the formal EU rule (Article 267 TFEU) reads asfollows:
Where such a question is raised before any court or tribunal of a Member State, that court
or tribunal may, if it considers that a decision on the question is necessary to enable it to
give judgement, request the Court to give a ruling thereon. Where any such question israised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring thematter before the Court.

On the one hand, according to the above article, lower national courts may refer cases
to the CJEU, but they are not required to. However, in cases in which lower national
courts have doubts about the validity of EU law, they are obliged to request preliminary
rulings because national courts do not have jurisdiction to declare an EU legal provision© 2023 The Authors. JCMS: Journal of Common Market Studies published by University Association for Contemporary European Studies and John Wiley & Sons
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invalid.1 The courts of ﬁnal instance, on the other hand, are obliged to refer disputes
involving EU law to the CJEU, according to the article. Over the years, the CJEU has
established a few exceptions to this rule. Based on the CJEU’s case law, courts of ﬁnal
instance can refrain from referring an EU law case if the CJEU’s interpretation will notaffect the outcome of the case, if the EU legal provision in question has already beeninterpreted by the CJEU (acte éclairé) or if the correct application of EU law is so obviousthat it leaves no possibility of reasonable doubt (acte clair) (the CILFIT criteria2).
Although subsequent judgements from the CJEU have led to a discussion of theinterpretations of these exceptions,3 the CJEU has conﬁrmed them (Maher, 2022).4
The regulation of national judges’ second decisions regarding whether to express opinions in requests for preliminary rulings is found in the ‘Recommendations to National
Courts and Tribunals in Relation to the Initiation of Preliminary Ruling Proceedings’[The Ofﬁcial Journal of the European Union (OJ), 2012].5 According to the original version of the recommendations, all national courts have discretion regarding whether theywant to include opinions in their requests for preliminary rulings:
If it considers itself able to do so, the referring court or tribunal may, ﬁnally, brieﬂy state
its view on the answer to be given to the questions referred for a preliminary ruling.
(OJ, 2012, paragraph 24)

This article argues that when comparing the two decisions national judges make in the
preliminary ruling procedure, the formal legal framework that regulates each decision differs in terms of prescriptive clarity. Regarding the second decision, that is, the expressionof opinions, the codiﬁed rule prescribes no obligatory action, and the behavioural guidance provided is not clear because it is up to each judge or court to decide whether they
can or should state their views. In addition, this rule comes in the form of a lower level
norm, that is, a recommendation, not a treaty article. Therefore, the prescriptive clarityof this EU rule is low. In comparison, the prescriptive clarity of the rules that regulate
the ﬁrst decision, that is, the referral of cases, is considered to be higher. The conditions
under which national courts are required to refer cases are established in EU treaties andin CJEU case law. To be sure, the prescriptive clarity of a treaty article is somewhat higher
for courts of ﬁnal instance than for lower level courts, although lower national courts arealso required to refer cases under certain circumstances. Moreover, the extensive debate
on how to interpret CJEU case law regarding the CILFIT criteria (Limante, 2016;
Maher, 2022) suggests that the rules that regulate the decision to refer cases are
considered to be ambiguous by many actors. However, the claim is not that these rules
have ‘perfect’ prescriptive clarity. Rather, what is proposed is that the rules that regulate
the decision to refer cases have a relatively high degree of clarity than the rules that
regulate the decision to express opinions.
1

C-314/85. Foto-Frost.
C-283/81. Srl CILFIT, paragraph 21.
Two CJEU judgements pointed in different directions with regard to the obligation to refer. One judgement did not requirea court of ﬁnal instance to make a referral simply because a lower court had made a referral on the same issue (joined cases
C-72/14 and C-197/14), whilst in the other judgement, the CJEU held that a court of ﬁnal instance could not ignore conﬂicting decisions from lower courts (case C-160/14).
4
See case C-561/19. Consorzio Italian Management in which the CJEU conﬁrms and complements the CILFIT criteria.
5
In the 2019 version of the recommendations (OJ, 2019), the wording of the paragraph has changed slightly. However, as
this study is interested in the period before 2019, it relies on the 2012 version of the recommendations.
2
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A matter of prescriptive clarity?

Karin Leijon

Accordingly, contrasting the two sets of EU rules that regulate national courts’ engagement in the preliminary ruling procedure shows that the prescriptive clarity of the formal
EU rules related to the ﬁrst decision, regarding whether cases are to be referred to the
CJEU, is higher. Based on this interpretation of the relative prescriptive clarity of the different rules and the proposition that a relatively clear logic will dominate over a logic thatis less clear, three hypotheses can be formulated.
Decision 1: High Degree of Prescriptive Clarity in Formal Rules
H1 When deciding whether to request preliminary rulings from the CJEU, national judges
are expected to mainly consider the compliance pull of EU law (i.e., base their decisions
on Article 267 and the CILFIT criteria).

Decision 2: Low Degree of Prescriptive Clarity in Formal Rules
H2a When deciding whether to express opinions in requests for preliminary rulings,
national judges are expected to mainly consider personal or politico-strategic outcomes.

H2b When deciding whether to express opinions in requests for preliminary rulings,
national judges are expected to mainly consider the compliance pull of informal rules ofappropriateness, such as norms regarding professional judicial conduct.

III. Materials and Methods
This study builds on semistructured face-to-face interviews with 20 Swedish judges. As
the aim is to understand how judges think about the decisions they make, the use of suchopen-ended interview questions is appropriate because they allow the respondents to reﬂect upon their actions (Marsh and Stoker, 2010, p. 199). The respondents were randomly
selected from amongst a list of all judges who had requested at least one preliminary
ruling; this selection was done to ensure that respondents had all actually considered
whether to request preliminary rulings and whether to express opinions.6 Moreover, forthe compliance pull of EU law to take effect and for the prediction of prescriptive clarity
to work as expected, judges are assumed to have sufﬁcient knowledge of the preliminary
ruling procedure. Swedish judges with prior experience of referring cases to the CJEU are
therefore a suitable choice because they are arguably likely to be familiar with the EU
rules regulating the procedure.
The aim of the empirical analysis is to conduct a plausibility probe, that is, to make anempirically informed judgement about whether more systematic testing of the theoretical
expectations is warranted (Eckstein, 1975; Levy, 2008). Thus, whilst the number of respondents is too limited as a basis for thoroughly testing the validity of the three hypotheses, the analysis seeks to establish whether any of the expectations receive broad
6

Approximately 120 Swedish judges had requested at least one preliminary ruling at the time in which the respondents wereselected (2016 to 2017). All respondents in the sample had also decided against referring EU law cases to the CJEU. The
respondents’ court placement can be found in the Appendix (Table A1).
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support, suggesting that the hypotheses would be worthy of further exploration in a larger
study. An important limitation of the study design is that it only allows for an investigation of how judges’ motives differ depending on one factor, namely, the prescriptive clarity of EU rules. One should therefore keep in mind that other circumstances, such as thecomplexity of the legal case at hand (Hübner, 2018), may inﬂuence judges’ motivational
patterns.
To investigate whether H1 is supported, the respondents were asked about the considerations that led them to request preliminary rulings from the CJEU in some cases and theconsiderations that resulted in no referral being made in other cases. If the majority of the
respondents stated that they considered EU rules (i.e., Article 267 and the CILFIT
criteria), then this behaviour was interpreted as being in line with H1. For example, if alower court judge explained that a referral was made because the validity of EU law
was at stake or because the interpretation of EU law was unclear, then H1 was considered
to be supported. Similarly, if respondents from lower courts justiﬁed their decisions not torequest a preliminary ruling by referencing the fact that they had no obligation to refer,then this justiﬁcation was interpreted as support for H1. Finally, H1 was also supported
if a respondent from a court of ﬁnal instance explained that a referral was made because
the interpretation of EU law was unclear or that a referral was not made because the interpretation of the EU legal provision was considered ‘obvious’ (the CILFIT criteria).
In contrast, H1 was not supported if the respondents mainly justiﬁed their referral decisions with reference to any motives other than the formal EU rules, for example, if the
respondents indicated that their decisions not to refer a case were part of a strategy to
avoid further integration. As requests for preliminary rulings must concern the interpretation or validity of EU law for those requests to be considered by the CJEU (OJ, 2012,2019), it can be expected that all judges will mention how referrals made relate to thesepoints of EU law when explaining their decisions to refer. In the empirical analysis, it willthus be important to determine whether the judges also mention other motives for referring cases to the CJEU.
To determine whether either H2a or H2b was supported, the respondents were asked
about their decisions regarding whether to include how the case should be resolved in
the request opinions. H2a was supported (and H2b rejected) if most respondents justiﬁed
their decisions with reference to politico-strategic motives or personal preferences, for example, if respondents described the decision to express an opinion as a way to inﬂuence
the interpretation of EU law. Conversely, H2b was supported (and H2a rejected) if the interviewees mainly referred to rules of appropriate behaviour, such as shared professional
norms. In addition, H2a and H2b were rejected if the judges mainly referred to formal EU
recommendations, that is, if respondents said that an opinion was included because thecourt found itself able to formulate it and that including the opinion would facilitate thehandling of the request for a preliminary ruling. The coding procedure used for the responses is described in the Appendix (Table A2).
To ensure that the respondents felt they could talk freely, they were granted anonymity.
However, the respondents’ answers should be treated as a mix of internal motivations andexternal justiﬁcations for action. A fruitful way forwards is to discuss what types of justiﬁcations are considered socially desirable in the context of the study. Regarding national
judges, it is reasonable to assume that as they are supposed to follow the law, we can expect that these respondents mainly emphasise EU rules in their answers. The questions of© 2023 The Authors. JCMS: Journal of Common Market Studies published by University Association for Contemporary European Studies and John Wiley & Sons
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A matter of prescriptive clarity?

Karin Leijon

whether this claim holds and how such answers potentially affect the interpretation of theresults are discussed in the following section.
IV. Empirical Analysis
In the following two subsections, the ﬁndings from the interviews with Swedish judges
are presented. Each respondent was assigned a number between 1 and 20, which is referred to in connection with the quotes.
Motives for (Not) Requesting Preliminary Rulings
A clear majority (18 out of 20 respondents) described their decisions to refer cases to the
CJEU as a simple matter of fact given the wording of Article 267 and the CJEU’s caselaw. For example, a judge who worked in a court of ﬁnal instance stated, ‘If the legal caseis about the interpretation of an EU legal rule and the interpretation is unclear, then you
just have to ask’ (19). These respondents’ references to the compliance pull of EU rules
were expected because judges are required to explain why a referral is necessary whensending a case to the CJEU. However, two lower court judges also mentioned other typesof motives that were unrelated to formal EU rules when describing their decisions to refer
speciﬁc cases. These interviewees7 noted that they decided to refer cases to the CJEU to
avoid being blamed for setting aside national legislation. Both judges noted that the situation is sensitive when domestic policies conﬂict with the supreme EU law. As one ofthem stated,
It’s later, when you get into more sensitive situations, where you maybe need that … thatsomeone else says it. In our case, for example, it was a scapegoat function really, veryclear, one could say. (Q: How do you mean?) It’s not we who are setting aside Swedish
law, but it’s actually the European Court of Justice that says that we have to do it –“Look, our hands are tied” – it’s a pretty good feature [of the EU legal system]. (9)This blame avoidance motive (Novak, 2013, p. 1101) for requesting preliminary rulings from the CJEU matches the assumption of the judicial empowerment thesis, whichsuggests that judges use the preliminary ruling procedure to safeguard and strengthen
their own position vis-à-vis the political branches of government (Alter, 2001, p. 50, note
21; Maher, 1994, p. 229).
In regard to the motives behind not requesting preliminary rulings, seven of the
respondents8 described that the EU law cases in which they decided against referral wereclear with regard to the interpretation of EU provisions; these statements are in line withthe compliance pull explanation. However, the majority of the judges mentioned othermotives. One respondent9 who worked in a court of ﬁnal instance stated that he or shesometimes refrained from requesting preliminary rulings to prevent the expansion of
EU law, which is a reasoning that corresponds to the expectations of the sustained resistance account (Golub, 1996) and the attitudes of Dutch and British high court judges(Krommendijk, 2021). It should be noted that as all respondents have referred questions
7

Respondents 5 and 9.
Respondents 3, 7 and 8 (lower court judges) and 11, 12 and 17 (high court judges).
9
Respondent 16.
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to the CJEU, they are more likely to be positive about EU law and its potential expansion
than the average Swedish judge. This situation suggests that the share of judges who decide against referring cases to the CJEU to prevent further expansion of EU law is smallerin this sample than in the population.10
Moreover, four respondents at different levels of the judicial hierarchy11 stated that they
avoided the procedure because they were afraid of making mistakes. One of them stated,
It’s embarrassing! It is an embarrassment for the court to ask a question and then get a
response that lets you know that you have completely misunderstood [EU law]. (13)The claim in the judicial politics literature is that judges fear that such critical remarks
from higher courts will have a negative effect on their career prospects (Heumann, 1978;
Tridimas and Tridimas, 2004, p. 135). Similar motives have been expressed by, for instance, Dutch (Krommendijk, 2021), Italian (Pavone, 2018), and Croatian and Slovenianjudges (Glavina, 2019).
Finally, 10 judges from both lower and higher courts12 described how they did not always act in accordance with EU rules. The reason for this ‘rule-breaking’ behaviour was,according to the respondents, an effort to protect the functioning of the preliminary rulingprocedure. These judges had all decided against referrals because they worried that the
CJEU is overburdened with cases and unable to deliver judgements within a reasonable
time. Previous research has suggested that the CJEU harbours similar concerns about
the long processing time in the preliminary ruling procedure (Brekke et al., 2022). Oneof the interviewees stated,
If all courts of ﬁnal instance were to ask questions, which they are obliged to do as soon
as doubts arise, then the European Court of Justice would be drowning in requests forpreliminary rulings. (2)Moreover, and partly in line with previous studies (Krommendijk, 2021), these respondents feared that the lengthy procedure before the CJEU may harm the parties to the case.
One of them stated,
It is not so often you want to refer a case because you know that it takes almost two years
before you get an answer, and it is not so fun for the parties that it takes such an awful
long time. (1)These quotes show that the respondents found it inappropriate to refer all cases inwhich the interpretation of EU law is unclear to the CJEU due to the expected delay inthe procedure. In contrast to the claims made in previous research about how the compliance pull of EU law and considerations of judicial empowerment affect judges’ level ofengagement in EU legal integration, this ﬁnding shows that judges may also consider
what type of decision is suitable given the (perceived) need to protect the functioningof the preliminary ruling procedure.
As Table 1 shows, whilst most respondents referred to formal EU rules when asked todescribe their reasons for requesting preliminary rulings, most respondents expressed10

In particular, lower court judges who want to limit the expansion of EU law are unlikely to be included in the sample because it only includes judges that have referred at least one case and these judges are less likely to have referred cases because they are not obliged to do so.
11
Respondents 1, 2 and 9 (lower court judges) and 13 (high court judge).
12
Respondents 1, 2, 4, 5 and 6 (lower court judges) and 10, 14, 15, 18 and 19 (high court judges).
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Karin Leijon

Table 1: Whether to Refer Cases to the CJEU – The Frequency of Stated Motives.
Number of answers/respondents
Motives for referring
Required by EU law: Article 267 and the CILFIT criteria(compliance pull of formal EU rules)
Blame avoidance (politico-strategic)
Total number of answers and respondents
Motives for not referring
Not required by EU law: Article 267 and the CILFIT criteria(compliance pull of formal EU rules)
Limit EU law expansion (politico-strategic)
Fear of making mistakes (personal-strategic)
Protect the functioning of the preliminary ruling procedure(compliance pull of informal norms of appropriateness)
Total number of answers and respondents

18
2
20/20
7
1
4
10
22/20*

Abbreviations: CJEU, Court of Justice of the European Union; EU, European Union.
*
Respondents 1 and 2 expressed motives related to the fear of making mistakes and protecting the functioning of the preliminary ruling procedure. Both of their answers are included in the numbers reported in this table, which means that the
total number of answers is 22.

motives unrelated to those rules when explaining why they did not refer cases to the
CJEU. These ﬁndings thus support the theoretical expectation (H1) only with regard to
the decision to request a preliminary ruling. We cannot know for sure whether judges omit
their reasons for (not) referring cases. However, the motives stated are varied, ranging
from blame avoidance to respect for the limited capacity of the CJEU, and are somewhat
surprising because the respondents could simply have referred to the formal rules when
explaining their decisions. This ﬁnding indicates that the study did not primarily capturesocially desirable justiﬁcations for action, in which case the respondents would solely
have emphasised formal EU rules in their answers. Moreover, although the design ofthe study does not allow for comparisons across court levels, the ﬁndings show that there
is no difference in the stated motives between respondents from the highest courts andthose from lower courts.
Motives for (Not) Expressing Opinions
With regard to the judges’ motives for expressing opinions, the ﬁndings show that three
respondents13 who worked in lower courts believed that they were required to include
opinions in the requests; however, the recommendations do not make opinions mandatory. One respondent stated,
Well, you should express your views, and you should provide the EU court with information about the member state’s law and its purpose. (1)It appears as if these judges motivate their decisions to include opinions by referring to
the compliance pull based on what they perceive are the formal EU rules. In addition, four
judges14 from both lower and higher courts stated that they were unaware that they could
13
14

Respondents 1, 2 and 9 (lower court judges).
Respondents 7 and 8 (lower court judges) and 11 and 12 (high court judges).

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express opinions. These responses are surprising and suggest that some of the Swedish
judges are not that familiar with EU rules. As previous research has shown, a lack ofknowledge is one reason for which national judges do not engage in the preliminary
ruling procedure (e.g., Glavina, 2019; Jaremba, 2013; Krommendijk, 2021; Pavone, 2018;
Wallis, 2008).
Three respondents expressed motives that could be considered politico-strategic or personal in nature. One of these judges, who worked in a court of ﬁnal instance, believed thatnational courts should use their opinions to inﬂuence EU legal integration by ‘steering thework of the EU court’ (18). This type of motive is interpreted as being in line with theassumptions underlying the judicial empowerment thesis and the sustained resistanceview. Two other respondents15 from lower courts stated that they did not include opinions
in their requests because they were afraid of making mistakes.
Finally, 10 respondents, most of them from the highest courts,16 said that they did notstate their views in the requests because they found such opinions to be incompatible withthe court’s role within the EU legal system. The respondents perceived that the expressionof opinions undermined their impartiality, as illustrated by the following quotation:
The [national] court should not state its position on the matter because the legal processcontinues. You have to be impartial until the ﬁnal decision is made; it’s a basic judicial
norm. (20)

Similarly, opinions were considered by the respondents to be incompatible with the division of competencies between the CJEU and the national courts. As one respondent
stated,If the national court would write “so we think that this matter should be interpreted in thisway”, then the national court would be placing itself above the CJEU. (17)

It is clear that these motives for not expressing opinions do not follow the EU
recommendations, which allow for opinions to be expressed. Instead, the respondents’reasoning appears to be related to their understanding of what constitutes appropriate
professional behaviour for a national judge.
Summarising the results in relation to the theoretical expectations, Table 2 shows that
although a few judges referred to personal and politico-strategic reasons when describing
their rationales for not expressing their opinions, for instance, the fear of making mistakes, these reasons do not constitute the dominant motives, which means that H2a is
not supported. Instead, the majority of the respondents believe that opinions should not
be expressed because they undermine the judges’ role as impartial actors and interferewith the division of labour between the national courts and the CJEU.
Put in general terms, most of the respondents thought that the expression of opinions
was irreconcilable with their professional responsibilities as national judges. These results
corroborate the alternative hypothesis (H2b): When formal EU rules have a low degree ofprescriptive clarity, judges consider the compliance pull of informal rules such as norms
regarding professional judicial conduct. The implication of this ﬁnding is discussed in thenext and ﬁnal section.
15
16

Respondents 3 and 4 (lower court judges).
Respondents 5 and 6 (lower court judges) and 10, 13, 14, 15, 16, 17, 19 and 20 (high court judges).

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A matter of prescriptive clarity?

Karin Leijon

Table 2: Whether to Express Opinions in the Request for a Preliminary Ruling: Frequency ofStated Motives.
Responses

Number of respondents

Unaware of the possibility to express opinions
Motives for expressing opinions
Believed to be formally required (compliance pull of perceived formal rules)
Inﬂuence European Union law (politico-strategic)
Motives for not expressing opinions
Fear of making mistakes (personal-strategic)
Incompatible with one’s professional role and competence(compliance pull of informal norms of appropriateness)
Total number of respondents

4
3
1
2
10
20

Conclusions
Does national judges’ reasoning vary depending on the prescriptive clarity of EU legal
frameworks and, if so, how? The theoretical expectations stated that if the formal legal
framework has a high degree of prescriptive clarity, that is, it provides judges with clear
behavioural guidelines, then the dominant motive is the compliance pull of EU law (H1).
Conversely, if the prescriptive clarity of the legal framework is low, then other motives,
such as politico-strategic preferences (H2a) or, alternatively, informal rules of appropriateness (H2b), inform judges’ decision-making. The results show that Swedish judges’
motives for action partly support the hypotheses.
With regard to the ﬁrst decision-making situation in which the prescriptive clarity of
the legal framework is high, the ﬁndings support the expectation (H1) by showing thatthe majority of the respondents referred to formal EU rules when asked to describe theirreasons for requesting preliminary rulings. However, and contrary to the hypothesis, most
respondents expressed motives unrelated to EU rules when explaining why they did notrefer cases to the CJEU. Instead, they mentioned various considerations, including informal rules of appropriateness (i.e., professional norms) and strategic motives such as limiting the expansion of EU law. With regard to the second decision-making situation inwhich the prescriptive clarity of the legal framework is low, the results do not support
the expectation (H2a) that judges mainly justify their decisions with reference topolitico-strategic or personal preferences when the prescriptive clarity of formal EU rules
is low. Instead, H2b is supported as the majority of the judges decided against expressing
their opinions because they found those opinions to be incompatible with professional judicial norms.
Whilst this study covers Swedish judicial behaviour, it is worth reﬂecting upon
whether one should expect that judges who are experienced in requesting preliminary rulings in other member states express similar motives. On the one hand, research has suggested that the particular political and legal traditions in the Nordic states have madeSwedish judges reluctant to engage in the preliminary ruling procedure (Wind, 2010).
We may thus expect that the considerations expressed by Swedish judges differ fromthose expressed by judges in other member states. On the other hand, the motives uncovered in this study show that Swedish judges’ considerations frequently coincide with© 2023 The Authors. JCMS: Journal of Common Market Studies published by University Association for Contemporary European Studies and John Wiley & Sons
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those expressed by British, Croatian, Dutch, Italian and Slovenian judges, suggesting thatsimilarities in motivational patterns across member states cannot be ruled out. In sum, theresult of this plausibility probe suggests that more rigorous testing of the theoretical expectations is warranted. In particular, the broad support for the hypothesis that when
the prescriptive clarity of the formal rules is low, national judges mainly consider thecompliance pull emanating from informal rules of appropriateness (professional norms)(H2b) suggests that this hypothesis is worthy of further exploration in a larger comparative study.
Moreover, whilst the analysis is based on answers by a limited number of respondents,
the fact that the majority of the respondents considered the inclusion of opinions in theirrequest for preliminary rulings to be incompatible with their professional responsibilities
has potentially two important implications for research on national judges in EU legal integration. First, this ﬁnding is likely to have implications for the compliance pull explanation. Whilst the claim in previous research has been that judges generally ﬁnd themselves
to be professionally bound to follow the compliance pull of formal EU law (Hübner, 2018;
Weiler, 1991), this article suggests that it is also necessary to account for the informal
rules of appropriateness. As the results of this study indicate, judges experience a‘compliance pull’ emanating from professional norms. In light of this ﬁnding, the article
proposes a partly redeﬁned understanding of how ‘the compliance pull of law’ (legal
formalism) matters for national judges: What national judges perceive themselves as
professionally bound to do may depend not only on the compliance pull of formal EU
rules but also on the pull of informal rules of appropriateness such as norms regarding
appropriate judicial conduct.
Second, the ﬁndings potentially have implications for the literature on the forces driving human behaviour and the proposition that the logic of consequences is likely to dominate actors’ reasoning in situations where formal rules have a low degree of prescriptive
clarity (March and Olsen, 1998, 2008). Contrary to this expectation, the results show thatwhen formal EU rules were unclear, most of the respondents explained their decision torefrain from expressing opinions by invoking professional norms rather than consequentialist considerations such as politico-strategic motives. To make sense of this ﬁnding, it
can be theorised that when there are no clear, codiﬁed rules that prescribe legally binding
action, the uncertainty of the situation leads judges to ask themselves ‘What is the basis of
my professional identity?’ rather than ‘What is the best decision given my preferences?’That is, the lack of clear and legally binding regulations makes judges unsure about thediscretion they have in a given situation. Instead of consequentialist considerations,judges rely on norms related to their professional role. As discussed above, the study
shows that even when EU rules did provide behavioural guidance, most of the respondents did not motivate their decisions to withhold cases from the CJEU based on theseformal rules. A possible explanation for this ﬁnding is that national judges consider factors other than EU rules precisely because that legal framework is clear. If the rules are
fairly precise, then national judges are able to determine which aspects of the procedure,
if any, are not regulated. Based on this information, judges can identify the level of discretion they have. That is, judges are aware of what parts of the decision-making process
are not guided by formal rules, and in these instances, they may base their decisions on
any type of consideration, including politico-strategic interests.
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Karin Leijon

The ﬁndings also speak to previous research that has shown that Croatian andSlovenian judges (Glavina, 2019; Leijon and Glavina, 2022) as well as Italian judges(Pavone, 2018) refrain from participating in the preliminary ruling procedure due to insufﬁcient knowledge about EU law. The judges included in this study were considered likely
to be familiar with EU law due to their prior experience in the preliminary ruling procedure. However, several judges were unaware of the possibility of expressing opinions or
had misinterpreted the rules. This result suggests that a lack of familiarity with some aspects of EU law, such as the CJEU’s recommendations to national courts, is also a factor
that affects the dialogue between more knowledgeable judges and the CJEU. Moreover,
the respondents differentiated between national law and EU law to some degree in theiranswers, suggesting that EU law is not fully embedded in the day-to-day work of thejudges. This fact is most evident with regard to the judges who noted that they wishedto prevent the expansion of EU law and those who referred to the conﬂicts between national provisions and the supreme EU law as sensitive matters.
This article has investigated how Swedish judges’ motives for action in the preliminary
ruling procedure vary depending on one factor, the prescriptive clarity of EU legal frameworks; the article has further suggested that future research should investigate whether
and how this clarity matters in shaping the motives used by judges in their actions acrossdifferent member states. To further our understanding of national court behaviour in thecontext of European integration, other factors worth exploring in future studies pertain
to whether judges’ considerations vary depending on their positions in the judicial hierarchy (Alter, 2001; Pavone and Kelemen, 2019) and whether the clarity of the factual circumstances of legal cases and the complexity of legal provisions (Hübner, 2018) resultin different motivational patterns.
Acknowledgements
The author is grateful to Thomas Persson, August Danielson, Kajsa Edholm and the participants at the
Law and Courts section, ECPR General Conference 2021, for their constructive feedback on earlier
drafts of this article. The author would also like to thank the three anonymous reviewers for their helpfulcomments.

Correspondence:
Karin Leijon, Department of Government, Uppsala University, Box 514, 751 20 Uppsala, Sweden.
email: karin.leijon@statsvet.uu.se

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Appendix
Coding of Interview Responses
The respondents were ﬁrst asked about how many times they had requested preliminary
rulings from the CJEU. Then, they were asked to describe the circumstances of one ofthese cases in more detail and what the main reasons for referral were. If they had referredmore than one case, they were invited to describe those cases as well. Second, the judges© 2023 The Authors. JCMS: Journal of Common Market Studies published by University Association for Contemporary European Studies and John Wiley & Sons
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were also asked if they, in that case or in any other cases they had referred (if they had
referred more than one case), had included opinions and, if so, their motivation for including/not including opinions in the request.
The recorded interview responses were transcribed by the author.
When coding the interview transcripts, the main code used was ‘manifest coding
items’, which consisted of answers to direct questions. For instance, ‘did you include
opinions in the request for a preliminary ruling’ yes/no, why not? And why did you decide to refer case X to the CJEU? The other coding item used was ‘latent coding items’,
which included responses that were not explicitly related to the questions, for example,
reﬂections on national legal procedures.

Table A1: List of Respondents by Court Level.
Respondent

Court

Instance

1
2
5
6
7
11
12
13
14
3
4
8
9
10
15
16
17
18
19
20

Administrative Court in Stockholm
Administrative Court (The Higher Education Appeals Board)
Administrative Court of Appeal in Sundsvall
Administrative Court of Appeal in Sundsvall
Administrative Court of Appeal in Stockholm
The Supreme Administrative Court
The Supreme Administrative Court
The Supreme Administrative Court
The Supreme Administrative Court
General Court (Stockholm District Court)
General Court (Haparanda District Court)
General Court (Court of Appeal for Upper Norrland)
General Court (Svea Court of Appeal)
General Court (Court of Appeal for Western Sweden)
The Supreme Court (General Court)
The Supreme Court (General Court)
The Supreme Court (General Court)
The Supreme Court (General Court)
The Supreme Court (General Court)
The Supreme Court (General Court)

1st
1st
2nd
2nd
2nd
3rd
3rd
3rd
3rd
1st
1st
2nd
2nd
2nd
3rd
3rd
3rd
3rd
3rd
3rd

© 2023 The Authors. JCMS: Journal of Common Market Studies published by University Association for Contemporary European Studies and John Wiley & Sons
Ltd.

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485

A matter of prescriptive clarity?

Karin Leijon

Table A2: Coding of Interviews.
Theoretical category
Whether to refer cases
Legalist theory(compliance pull of
EU law)
Not required by EU law
Logic ofappropriateness(compliance pull of
informal norms)
Politico-strategic

Code

Coding example

Required by EU law‘If the legal case is about the interpretationof an EU legal rule and the interpretationis unclear, then you just have to ask’ (19).

‘We considered the EU law to
be clear’ (12).
Protect the functioning of thepreliminary ruling procedure

Blame avoidance (judicial
empowerment)

Limit EU law expansion(sustained resistance)

Personal interest

Fear of making mistakes

Whether to express opinions
Lack of knowledge
Unaware of the possibility to
express opinions
Logic ofBelieved to be formallyappropriatenessrequired (compliance pull of(compliance pull ofperceived formal rules)
informal norms)
Politico-strategic

Inﬂuence EU law (judicial
empowerment)

Personal interest

Fear of making mistakes

Logic ofappropriateness(compliance pull of
informal norms)

Incompatible with one’s
professional role andcompetence‘If all courts of ﬁnal instance were to ask
questions, which they are obliged to do assoon as doubts arise, then the European
Court of Justice would be drowning inrequests for preliminary rulings’ (2).
‘It’s later, when you get into more sensitive
situations, where you maybe need that …
that someone else says it. In our case, forexample, it was a scapegoat function
really, very clear, one could say’ (9).
‘It is important to not request preliminary
rulings when you are unsure if it is an EU
legal issue. What I think is problematicfrom a constitutional stand point is if you
ask the CJEU a question outside the realmof EU law. If a national court does that it
has taken a stand that the issue falls within
the scope of EU law’ (16).
‘It’s embarrassing! It is an embarrassment
for the court to ask a question and then get
a response that lets you know that you
have completely misunderstood [EU law]’(13).
‘I am not familiar with the practice of
expressing any opinions’ (11).
‘Well, you should express your views, andyou should provide the European Courtof Justice with information about themember state’s law and its purpose andso on’ (1).
‘We discussed whether we should provide
some suggestion that can steer the workof the EU court and I thought that should
be done’ (18).
‘It is too risky. An important part is that I
was afraid to seem stupid’ (4).
‘No … I think … the question is whether it’sreally appropriate to express opinions
because we are not a party to the case.
We are not supposed to express our own
opinion’ (14).

Abbreviation: EU, European Union.

© 2023 The Authors. JCMS: Journal of Common Market Studies published by University Association for Contemporary European Studies and John Wiley & Sons
Ltd.

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486