CASE LAW OF THE COURT OF JUSTICE OF THE EUROPEAN UNION: THE ISSUE OF LEGAL FORCE DETERMINATION
Abstract
Abstract. The article addresses the issue of determining judgments of the Court of Justice of the European Union (CJEU) that have precedential value and are binding for national courts of the Member States. The difficulty in solving this issue stems from the fact that EU law does not define the conditions under which the CJEU’s judgment can acquire the features of a precedent, the types of proceedings in which precedents may be established, or the legal force of the CJEU’s judgments. To highlight this issue, the author characterises the substantive nature of precedent and finds that the CJEU’s judgments, which are considered to be generally binding, do not correspond to the interpretation of precedent in common law and continental law countries. The CJEU independently gives precedential value to its judgments by citing them, and a judgment that merely repeats a conclusion made earlier in another judgment may be cited, i.e., precedential value is recognised not only for the judgment that first introduced a certain rule or interpretation. Based on the analysis of the CJEU’s opinions in its preliminary judgments on the interpretation of EU law and judgments in cases of violation of EU law by a Member State, the author demonstrates the lack of clarity in determining which of its judgments can be considered as precedents. Despite the widespread doctrinal view of the general binding nature of the CJEU’s judgments, the author concluded that only legal opinions in preliminary judgments may have precedential value, however, some of these judgments may apply only to the national court that requested the interpretation of EU law. Given a certain selectivity in the citation of its own judgments by the CJEU, numerous cases of reference to the same legal conclusion set out in different judgments, and the practice of discontinuing the citation of certain judgments without reversing the legal position set out in them, it was noted that it is difficult to determine the legal force of the CJEU’s judgments not only for the national courts of the Member States, but also for the CJEU itself.
Keywords: precedent; Court of Justice of the European Union; legal force of the CJEU’s judgments; preliminary ruling; EU law.
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