Judicial Dynamism and Its Limits: The Role of National Courts and their Interaction with the CJEU
One of the deficits of the international debate about European Migration Law in the English language is the predominant focus on EU legislation and judges in Luxembourg and Strasbourg, as if the supranational institutions shaped migration law single-handedly. That is obviously incorrect. We all know from our respective national settings that the domestic level can be crucial: in the form of implementing legislation, administrative practices, and judicial oversight.
This contribution will assess the interaction between the national judiciary and the Court of Justice in six interrelated steps illustrating that the supranational judicial output is heavily influenced by the behaviour of domestic courts, as demonstrated by two perplexing statistics on the thematic focus of all CJEU judgments on the different migration law instruments and the number of references per Member State. On that basis, the final two sections will put the spotlight on national legal cultures as a critical variable and discuss the repercussions of the increasing politicisation of migration law for the role of domestic and supranational courts.