engleski

The Rule of Law and Adjudication of the Court of Justice of the EU

In this chapter, we discuss how the concept of rule of law can be employed to assess the adjudication of the Court of Justice of the European Union. The chapter is divided into two parts. Firstly, we aim to conceptualise the rule of law as applied to courts more generally. After assessing the two most common concepts of the rule of law – formal and substantive – we conclude that they do not respond adequately to the question of our research: what requirements does the rule of law impose on courts to control judicial discretion? We therefore propose a different, procedural concept of the rule of law. Such a concept entails upholding the effectiveness of judicial review by an independent judiciary, which also demands from the judiciary a standard of judicial responsiveness to legal argument and quality of legal reasoning. Approaching the process of adjudication as an argumentative discipline, the procedural rule of law necessitates a reasoned elaboration of judicial choices and justifications of a judgment compared to alternative outcomes. Secondly, we assess the case law of the Court of Justice in relation to these procedural requirements. Finally, we suggest that certain aspects of the judicial method used by the Court of Justice should change in order to satisfy the proposed requirements of the rule of law. In particular, the Court of Justice should abandon the formalist narrative of ‘one correct legal answer’ in its judgments, with no mention of conflicting interpretations of the applicable law, and start adequately addressing the submissions of the parties, the new developments of the law, or departures from previous case law.

rule of law, CJEU, adjudication, legal reasoning, judicial methods

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