The Uneven Legal Push for Europe – Questioning Variation When National Courts Go to Europe

Abstract

National courts have been key players in the legal push for Europe, though notably to varying degrees. This paper examines the persisting variations in the referral rates of national courts and the underlying causal factors, aiming to better understand why some member states’ courts have been more reluctant to join in the legal push for Europe. By using econometric methods, it challenges the modified neofunctionalist argument that the extent of intra-EC trade explains the referral practice of the individual member states. Majoritarian democracy is hypothesized as a causal factor in the low referral rates for some of the EU member states. Key characteristics of majoritarian democracy versus constitutional democracy are outlined and the former is further detailed by means of two case studies: Denmark and the UK. Finally, a panel data analysis is conducted and finds evidence of a negative impact of majoritarian democracy on the number of referrals. The paper concludes that, owing to the uneven legal push for Europe, some member states and their citizens remain at arms’ length from the legal integration process – and, in consequence, from the full impact of European integration.

Keywords: causality, legal integration, majoritarian democracy, national courts