The Rule of Law in Europe

AuthorEmily Hancox
PositionPhD researcher at the University of Edinburgh
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
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,5 and Metock6 (overturning Akrich7). More
1 PhD researcher at the University of Edinburgh.
2 Case C-262/96 Sema Sürül v Bundesanstalt für Abeit [1999] ECR I-2685, Opinion of AG La Pergola.
3 Case C-94/00 Roq uette Frères SA 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.
4 Case C-46/87 Hoechst v Commission [1987] ECR 2859.
5 Case C-267/91 Keck and Mithouard [1993] ECR I-6097.
6 Case C-127/08 Metock and Others [2008] ECR I-6241.

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