Silent Justice: Exploring the lack of EU litigation for migrant rights in Greece

This paper deals with a case in which EU justice has not been mobilized: Greece. Despite the large migration flows, Greek judges have never made a preliminary reference in the migration and asylum fields until 2023. Why was Greece, the EU frontline immigration country, a zero-reference case?Drawing on qualitative and doctrinal research, this paper tests two hypotheses. The first is derived from the ‘judicial empowerment thesis’ and posits that Greek judges proved reluctant to refer for political or institutional reasons. The second hypothesis stems from scholarship that has unveiled the role of lawyers and civil society actors as promoters of EU litigation; following this, we should expect that a lack of references means a lack of activist lawyers, skills, or resources. The paper finds that a combination of structural and subjective factors explains the absence of references. Contrary to common assumptions, Greek judges are not particularly reluctant to refer. The paper goes beyond judges and shows that mobilizing actors’ perceptions, legal consciousness, and traditional methods of action explain why they have not pushed for references.