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?
[...] Once again it's worth mentioning that the rule of stare decisis does not formally exist in the European Legal system and that the Court is perfectly free to ignore precedent rulings An unavoidable evolution The development of such a system was unavoidable; if it did not exist the ECJ would have had to give a ruling on each specific matter requested by a national court even if the matter had already been ruled before. It would be a waste of time and money. [...]
[...] The precedent was also probably the best way to strengthen legal certainty which was first acknowledged in Case 43/75 Defrenne v Sabena (No.2) and which is now recognized as a general principle. If precedent did not exist, the court (depending on its composition) could rule differently cases dealing with the same issue. T hat would create a climate of uncertainty for individuals. Finally and in a more political approach, the ECJ is often labeled as an integrationist organ. Its aim would be to slowly deepen the political integration. [...]
[...] 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. [...]
[...] The question asked to the court was only about a specific custom dispute but the ECJ seized the opportunity to widen the issue. Direct effects don't rely on a treaty article but on a ruling made by the court in 1963 that subsequently became a precedent strong enough to establish a new judicial device. In the same logic, in Case 15/84 Marshall v Southampton Area Health Authority the ECJ went beyond its basic duty (give a ruling) by deciding that directives could not be enforced against individuals which became a rule. [...]
[...] The development of the doctrine of precedent a. The stare decisis The notion of stare decisis has slowly emerged in European law. Formally, it does not exist as the court is not bound by its previous decisions even if it tends to follow them. For a long time its existence was even more obscure as the court practically never refers in its judgments to its previous decisions. Anthony Arnull points out that ‘even when repeating a passage verbatim, it [the ECJ] did not acknowledge the source'. [...]
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