National judges as EU law judges? Evidence from Slovenia and Croatia

A Member State’s accession to the EU entails new powers and duties for its judges. National judges as “juges communautaire de droit commun” are expected to uphold the supremacy of EU law; to interpret national law in conformity with EU law; to apply EU law ex officio; and to send a preliminary question to the CJEU when the resolution of the legal dispute requires it. But how does this description of the EU law-minded domestic judge compare to reality? This doctoral dissertation explores the application of EU law by Slovenian and Croatian national judges. The first part of the dissertation surveys Slovenian and Croatian judges on their knowledge, experience, and attitudes towards EU law, with an aim of comparing the reality of EU law application with the EU’s expectations of national judges. The second part of the dissertation uses empirical evidence to assess the determinants of judicial behaviour when it comes to the application of EU law. Specifically, it considers two decisions that judges make: first, the decision to refer legal questions to the CJEU and, second, the decision to uphold EU law rules when these do not necessitate interpretation. This dissertation is based on a mixed-method research design that combines data obtained by surveying and interviewing Slovenian and Croatian lower court judges. The results of the research show that whether and how national judges apply EU law both inside and outside of the preliminary ruling procedure depends on the interaction of various factors, both personal ones and those deriving from the wider institutional setting of the court at which judges sit.