The Rule of Law in Europe

• Author: Emily Hancox
• Position: PhD researcher at the University of Edinburgh
• Pages: 117-119

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GOLD MEDAL FOR BEST LETTER SUBMISSION 2016: THE RULE OF LAW IN

EUROPE

Emily Hancox1

Dear Editor,

While there are many urgent and troubling issues one might choose to write about regarding

European public law at present, I write to you today with a fairly modest plea. My plea is

aimed at the European Court of Justice (ECJ) and implores its members to better respect the

rule of law in their decision-making.

It is perhaps always dangerous to invoke such a contested concept as the rule of law in an

argument. However, the Member States themselves, as drafters of the Treaties, made clear

the commitment of the EU towards the rule of law. Article 2 of the Treaty on European

Union (TEU) states:

The Union is founded on the values of respect for human dignity, freedom,

democracy, equality, the rule of law and respect for human rights, including

the rights of persons belonging to minorities.

A number of meanings can be (and have been) attributed to the rule of law, ranging from a

formalistic conception to requiring a full-blown commitment to human rights. At its most

basic, perhaps, the rule of law might be regarded as a requirement of consistency that

contrasts with arbitrary exercises of discretion. When directed towards the judiciary, the rule

of law as consistency requires a coherent line of jurisprudence with some degree of

predictability. Respect for the rule of law does not imply that it is illegitimate for judges to

overrule earlier decisions. However, in such cases, judges ought to justify and explain the

shift.

In the context of the EU the need to respect the rule of law takes on a new dimension. The

decisions of the ECJ are binding across all twenty-eight Member States where it is the

obligation of national judges and law-makers to interpret and apply those decisions. While,

strictly speaking, the ECJ is not bound to follow its earlier decisions, its position within the

EU legal order provides a strong argument why the ECJ should aim for consistency.

The ECJ has only very rarely expressly departed from its earlier decisions and the cases in

which it has done so are ‘as few as they are celebrated’ (in the words of Advocate General La

Pergola).2 Such cases where the ECJ explicitly overruled its earlier decisions include

Roquette Frères3(overturning Hoechst 4), Keck,5and Metock6(overturning Akrich7). More

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1PhD researcher at the University of Edinburgh.

2Case C-262/96 Sema Sürül v Bundesanstalt für Abeit [1999] ECR I-2685, Opinion of AG La Pergola.

3Case C-94/00 Roq uette FrèresSA v Directeur général de la concurrence, de la consommation et de la

répression des fraudes, and Commission of th e European Communiti es [2002] ECR I-9011.

4Case C-46/87Hoechst v Commission [1987] ECR 2859.

5Case C-267/91 Keck andMithouard [1993] ECR I-6097.

6Case C-127/08 Metock and Others [2008] ECR I-6241.