The rule of precedent is the legal principle under which judges have to follow the judgments established previously by upper courts. The Latin translation of "stare decisis" gives an unequivocal definition of the concept as it means "to stand by that which is decided". Precedent underpins the legal system in Common Law countries such as the United Kingdom or the United States. When it became the European Court of Justice after the Rome treaty in 1957, the European Community had only 6 continental members whose internal legal system was based on Civil Law under which (to simplify) stare decisis does not exist. That might explain why precedent was not originally included in the European Legal system. However through time this initial situation has dramatically changed. In this essay I shall discuss the extent to what a de facto rule of precedent has been introduced in the European judicial system and how that affected the system as a whole. But, was this evolution escapable?
[...] However, its opponents have often criticized the court for going too far and for impinging on national sovereignty. One week before the Irish referendum on Lisbon treaty, the Irish journalist Niamh Connolly wrote an article in the Sunday Post entitled the European Court of Justice too powerful?” and in which he claims that the ECJ rulings might jeopardize the Irish pro-life choice. To a significant extent the referendum was lost on this issue, the citizens decided to punish the ECJ and that is rather oblivious andungrateful. [...]
[...] Actually the issue was not that easy, as the two brands used to belong to the same owner, before one of them was nationalized by the Belgian state and sold to another entrepreneur. Philip MOSER, Katrin SAWYER, Making European Community Law, the Legacy of Advocate General Jacobs at the European Court of Justice. London: Edward Edgar Publishing Page 22. Nigel FOSTER, op. cit. [...]
[...] On the contrary in Civil Law countries, the parliament has to pass a law to change a point of legislation and that might take time. All in all, shifts of case-laws can keep the law up to date and are an answer to new political factors The effects of precedent The first consequence, as already suggested, is the strengthening of the ECJ but some others have followed. One example is the establishment of judicial devices created by the ECJ in its judgments. [...]
[...] This results, it is submitted, in the creation of Common Law-like hierarchy of courts where the ECJ plays the role of the House of Lords and national courts play the role of lower British courts that are bound by the decision of the upper court. Regarding the possibility left to national courts to rule on their own an obvious case, the criteria required to do so are in practice very ‘difficult to fulfill if properly followed'[3]. However that might give an illusion of equality between the ECJ and the national courts The possibility of overruling As I already pointed out, the court is not bound by its previous decisions and can overrule them if it judges that the situation has changed or that new elements have been added. [...]
[...] Niamh CONNELLY, Is the European Court of Justice too powerful? in Sunday Business Post. 9th February 2008 (Available at http://archives.tcm.ie/businesspost/2008/06/08/story33527.asp) Decisions of the Court of Justice Case 192/73 Van Zuylen frères v Hag AG. http://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61973J0192:EN:HTML Case 10/89 Hag No.2. http://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61989J0010:EN:HTML Case 26/62 Van Gend en Loos http://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61962J0026:EN:HTML Case 28-30/62 Da costa http://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61962J0028:EN:HTML Case 283/81 CILFIT http://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61981J0283:EN:HTML Anthony ARNULL, owning up to fallibility: precedent and the court of Justice in Common Law Market Review, April 1993. [...]
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