European Court of Justice

Compare the use of precedent in the UK courts and in the European Court of Justice, and explain to what extent the UK courts are affected by European Legal Methods.

The doctrine of judicial precedent, otherwise known by the Latin tag stare decisis, which means let the decision stand, was born out of necessity around 800 years ago. After the Norman conquest of England in 1066 King William promised to respect the laws and traditions of his new kingdom, but that promise did not outlive him. Subsequent Kings dispatched judges to travel on circuits around the far flung regions of the country. In order to introduce consistency and predictability into the decisions they took a system of precedent was established which dictated that judges were required to follow previous decisions where the same point of law arose in a later case. This system became entrenched and served to unify the disparate regional laws of England into one law common to the whole country: hence the name Common Law.

The practice of precedent in the modern UK Courts

Judicial precedent is thus both a defining feature and a fundamental component of the English Common Law system. Decisions made by the House of Lords bind all lower Courts, and usually the House of Lords itself, although it should be noted that the European Court of Justice stands as the highest authority as far as matters over which the EU has authority are concerned . The Court of Appeal is, apart from some exceptions which were set out in Young v Bristol Aeroplane Co Ltd (1944) , bound by itself and it also binds all lower courts. Moving down the hierarchy of courts the decisions of the High Court and Divisional Courts bind all lower courts, whereas the decisions of the lower courts are not binding, although they may be of persuasive authority.

It is important at this point to make it clear that the doctrine of precedent does not apply to the whole of a judgment. It is only the ratio decidendi (the reason for the decision) of a judgment that has binding authority. The ratio is the legal nucleus of a case, the point of law on which the judgment is settled. It only comprises a tiny fraction of the judgment. The vast majority of a judgment is classified as obiter dicta (literally things said by the way or in passing) and is not of binding force, even if it is derives from the House of Lords, although it will be of persuasive authority equivalent to the status of the court from which it emanated.

The practice of the European Court of Justice compared to the UK system

The European Union is founded on the Civilian legal models of Germany and France, a system which is distinguished by the absence of the doctrine of judicial precedent. As opposed to the practice of the English courts, the European Court of Justice does not feel bound to its own previous decisions. While, as stated above, the House of Lords is usually bound by its decisions, the European Court of Justice freely exercises the right to reconsider its previous decisions in the context of a later case and sometimes departs from its previous jurisprudence.

Moreover, at least in so far as preliminary rulings are concerned, in contrast to precedents in the English legal system, the judgments of the European Court of Justice are not binding on lower courts. In the EU context the lower courts are the national courts of the member states. Although the UK courts hold the judgments of the European Court in high esteem and the latter court has exercised a profound effect over English legal method since cases such as Factortame, which confirmed the European Court’s supremacy – in particular in the field of statutory interpretation. That said, the European Court of Justice appears to take a flexible attitude to its earlier case law and on occasion it does appear to regards its previous decisions as establishing law that should be applied in later disputes. In its reasoning the European Court of Justice often introduces a statement of law in a style and manner that is redolent of the way in which an English judge would proceed. The Court of Justice commonly uses phrases such as: “as this court has consistently held” and “it is well established case law that”. These bring to mind a loose system of precedent but the European Court neither explains the treatment it gives a previous decision, nor does it draw any apparent distinction between ratio decidendi and obiter dictum, which as noted are essential components of an English decision.

Furthermore, European Court rulings are, especially in comparison with English judgments, laconic and dogmatic in style, containing abstract discussion but a far less detailed examination of facts. It is a style that can be found in decisions of the Bundesverfassungsgericht and Bundesgerichtshof of Germany. The lack of concurring and dissenting judgements from individual judges is a further distinguishing aspect of the collegiate decisions of the European Court of Justice, as well as the contextual and purposive interpretation of EC Treaty provisions in the light of their spirit rather than their text.

It is submitted that the absence of any discussion of precedent and the abstract style of its rulings makes the decisions of the European Court of Justice more difficult to understand than those of the English courts. But it can be argued that these characteristics guarantee the European Court of Justice the flexibility to address future disputes with a free and unfettered rein.

Concluding Comments

It can be seen from the foregoing analysis that the use of precedent in the UK courts is much stricter and more clearly defined than it is at the European Court. This is no surprise, given that the EU system is based on the Civilian system of law, which is characterised by an absence of the doctrine of stare decisis. That is not to say the European Court disregards its earlier decisions. Indeed it typically follows the pattern of its earlier case law, but it is not bound to do so and has the doctrinal flexibility to depart from established jurisprudence as it sees fit. The UK courts have demonstrated a susceptibility to the legal method of the Court of Justice, in particular when applying EC Treaty law or subordinate EU legislation, in the way in which they have embraced the practice of contextual and purposive, or teleogical interpretation, which is alien to their longstanding traditions of statutory interpretation.

BIBLIOGRAPHY

• • Elliot C. and Quinn F., The English Legal System, (2000) Longman
  • Keenan D., Smith and Keenan’s English Law, (1998) Pitman Publishing
  • Cross R and Harris J, Precedent in English Law (1991), Clarendon Press
  • EU Law – Text Cases and Materials, Craig and de Burca, (2003), Oxford University Press
  • Textbook on EC Law, Steiner and Woods, (2003) Blackstone
  • Law of the European Union, Kent, P., (2001) Longman