Réka Somssich - Ákos Szalai: Economic analysis of preliminary references: propositions and hypothesises. Nr. 2022/5.

Applying the positive approach to the economic analysis of law, the paper addresses the question of when it is more likely to have a preliminary ruling procedure initiated – in which cases the actors of a national procedure (judges, litigants, their lawyers) have more incentives to initiate the procedure or to propose the initiation of it. Based on this analysis, 10 propositions are formulated and transformed into hypotheses. According to our testable hypotheses more references are made in lawsuits

  • where judges (a) expect to hear more of the same cases in the future; (b) believe that it is more difficult to get an alternative help for the interpretation of EU law; (c) expect the ECJ to take a decision more quickly; (d) expect more precise guidelines from the ECJ;
  • where there is no established national case law;
  • after a government change;
  • where new EU law provisions must be interpreted;
  • where the parties proposing the initiation (a) have higher stakes (especially the monetary value) in the given lawsuit; (b) use more resources (present more evidence); (c) have several similar cases; (d) believe that alternative enforcement of EU law (e.g. through an infringement procedure) is more difficult or would bring less benefit (e.g. because it is more important for him or her to be personally involved in the litigation); (e) have greater wealth;
  • where many other clients' similar cases can be closed or simplified due to this procedure.

The working paper is available for download here.

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