Humboldt-Universität zu Berlin - Integrative Research Institute Law & Society (LSI)

Many legal scholars and practitioners consider the German judiciary to be a reliable and faithful interlocutor of the Court of Justice. German judges refer more and more constructive references than their peers in other Member States – or so the prevailing narrative runs. The present study seeks to dispel and correct this image as ref-erence champion. It identifies three challenges to the preliminary reference procedure in German courtrooms: a complex procedural framework restricting the discretion and obfuscating the duty to refer (1), a reluctant judiciary (2), and instrumental uses as a tool of judicial contestation (3). The study proceeds in four steps. Starting from a doctrinal perspective, it sketches the intricacies of the German pro-cedural framework and analyses how it may obstruct preliminary references. Taking a quantitative perspective, it places German refer-ences in relation to other indicators, such as population size, incom-ing cases, or the number of judges. Under such a lens, Germany finds itself at the lower end of the spectrum. This reluctance can be traced back to a bundle of factors, such as judicial hierarchies, workload, or lack of knowledge and trust. Shifting to a qualitative perspective, the study then explores the instrumental uses of the preliminary reference procedure as a tool of judicial contestation, both externally regarding the EU and internally regarding the German judicial architecture. The study concludes by focusing on a new actor in the reference game – the federal constitutional court. Its two senates have approached the preliminary reference procedure with diametrically opposed logics: the second senate underlines the power of the last, the first senate the potential of the first word. It remains to be seen whether the first senate will carry the day and herald – as a model for the entire German judiciary – a more cooperative future for the pre-liminary reference procedure.

If you want to read the draft of the paper, please contact Dimitrios Spieker before the event: luke.dimitrios.spieker@hu-berlin.de

Luke Dimitrios Spieker is a Postdoctoral Researcher at the DFG Research Training Group: DynamInt at Humboldt-Universität zu Berlin and a Senior Research Fellow at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg. His research focuses on various topics of EU and constitutional law, including the protection of EU values, constitutional identities, the dialogue between European and national courts and the interplay of Union citizenship and the Member States' nationality laws. Dimitri's work received several awards, such as the UACES Best Book Prize, the Otto Hahn Medal and the Common Market Law Review Prize for Young Academics.

The Werkstattgespräch is co-hosted by the Freie Universität Empirical Legal Studies Center (FUELS).