Ústavní soudy a předběžné otázky k SDEU: sofistikovaná strategie, nebo věc náhody?
Constitutional Courts and Preliminary References to the CJEU: A Sophisticated Strategy or a Matter of Coincidence?

Summary/Abstract: This article examines factors that influence the decision of constitutional courts to submit a preliminary reference to the Court of Justice of the European Union. The study focuses on 22 constitutional courts which submitted a total of 122 preliminary references between the years of 1958 and 2022. Firstly, I demonstrate that constitutional courts that have not yet submitted any preliminary reference represent a clear minority. Nevertheless, the variation in the number of questions referred remains significant, with the majority approach being rather passive. In the next section of the article, I critically assess the hitherto myopic perception of the Article 267 TFEU mechanism which depicts it as a purely strategic-political instrument of European integration, which has been purposefully used by the constitutional courts in order to advance their interests in the context of constitutional conflicts between them and the CJEU. Finally, in the last section, I situate the constitutional judges’ decision to engage in a formal dialogue with Luxembourg within a more coherent theory of constitutional decision-making, and I further identify four main groups of influencing factors – legal, institutional, personal and strategic.

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