In what ways does the European Court of Justice adopt a system of precedence which binds its future decisions?
Why do you think the ECJ is bound by its own decisions?
The European Union (EU) is founded upon a Civil law model which does not endorse the doctrine of judicial precedent. Judicial precedent is a feature of common law jurisdictions which requires judges to follow previous decisions where the same point of law arises in a later case.
Without this doctrine, the European Court of Justice (ECJ) is not strictly bound by its own previous decisions, and can reconsider or depart from them. The Treaty on the Functioning of the European Union (TFEU) Article 228 states that the decisions of the ECH are binding only on those to whom they are addressed.
Despite this, in applying substantive EU law, one necessarily consults previous decisions of the ECJ. Through these decisions, the legal order of the EU developed itself. Cases are often decided with phrases such as ‘it is established’, or ‘it has been held’, and in this way the ECJ itself does occasionally regard its decisions as binding. Commentators agree that there is a system of de facto precedence without establishing a strict formal hierarchy.
The development of this system is linked to the procedure relating to preliminary rulings. The ECJ may not be regarded as a supranational court over member state’s national courts but it is an important part of their judicial structure. It fulfils this role through preliminary rulings on EU law matters, with much of its reasoning based on the principle that its decisions are binding on all national courts. Furthermore, its jurisdiction and decisions are justified with reference to TFEU Article 267 which requires the uniform application of EU law.
European rulings may be more dogmatic or abstract than common law judgments. Commentators have acknowledged that the extent of the requisite ‘uniformity’ of EU law is unclear, and it certainly does not formally bind the ECJ. This creates some uncertainty, but it gives the ECJ the option to address future disputes more freely.