Old is new : the transformative effect of references to settled case law in the decisions of the European Court of Justice

References to settled case law permeate the decisions of the European Court of Justice. Legal literature commonly deems them elements of stability and constraint. By contrast, this article highlights their transformative effect. That effect occurs in the process of repetition, conceptualized as a process that permits alteration. The article identifies and explores three types of alteration, or three mechanisms of instability: (1) the substitution of cited cases in citation strings; (2) the alternation between expressions found in settled case law and alternative expressions; and (3) the un-anchoring or detachment of legal statements from cases in which they initially appeared. The analysis illustrates how substitution leads to diverging interpretive outcomes, how alternation unsettles the normative force and the relevance of the acquis, and how un-anchoring results in a loss of knowledge. From this perspective, references to settled cases result in complex changes to the law – changes which are multi-directional and lack a clear progression. The article contributes to a better understanding of legal change, and it illuminates the role of past cases in the Court’s decision making

That's an order! : how the quest for efficiency is transforming judicial cooperation in Europe

Published online: 9 June 2022Effective procedural arrangements allow courts to reconcile conflicting demands of timely justice and sound legal argument. In the context of the European Union, conflict between these demands emerged most acutely in the face of paralyzing delays in the preliminary reference procedure. It was partly solved by Article 99 of the Rules of Procedure. The provision allowed the European Court of Justice to dispose of repetitive and legally undemanding cases with a reasoned order in lieu of a judgment. This article analyses all published orders of the European Court of Justice to examine the use and the implications of Article 99 of the Rules of Procedure. It is the first article to do so. We find that the Court resorts to orders to save time and to halt repeated questions from the courts of a single Member State.This article was published Open Access with the support from the European University Institute Research Council.The article is a published version of iCourts Working Paper 2020/21

The role of effet utile in preserving the continuity and authority of European Union law : evidence from the citation web of the pre-accession case law of the court of justice of the EU

Effet utile is one of the most contested terms in European case law. The present article empirically analyses its occurrences in the case law across time, legal fields and argumentative contexts. It thereby demonstrates that the main function of effet utile is to mitigate the entrenchment and extension of fundamental doctrines: primacy, direct effect and human rights. On this basis, the article argues that effet utile is primarily a rhetorical instrument used by the Court of Justice of the European Union to decouple legal principles from the practical effects of its decisions with the objective of persuading Member States to accept the authority of European law without compromising its normative coherence and continuity. The analysis is an important contribution to a comprehensive understanding of effet utile and offers a deeper insight into the long-term maintenance of supranational judicial authority

Editorial : a method of (free) choice

Special issue published online 31st January 2019 in cooperation with the Network of Empirical Legal Scholar

The relevance of the network approach to European (case) law : reflection and evidence

The chapter argues that the network approach is a viable methodology in legal empirical research, which can be used to study the case law of the Court of Justice. To demonstrate this potential, the chapter: first, shows how to obtain detailed information about the law from the citation network; second, it illustrates how to assess the legal relevance of cases by looking at case citations; and, third, it explores how to infer the doctrinal influence of selected landmark cases. All examples adapt different citation network tools to the study of legal structures and legal discourse which can focus, frame, support, and guide doctrinal analysis