Does the Court of Justice follow precedent?

Formally, the EU legal order does not operate under the doctrine of stare decisis, which means that previous decisions of the Court of Justice of the EU (CJEU) are not legally binding on future decisions (Tridimas 2012). However, in practice, no legal system based on the rule of law can ignore the general principle that ‘like cases should be treated alike’ (Schauer 1987). Furthermore, we know from empirical research that the Court has increased the number of citations to its own previous decisions exponentially in the last decades (Fjelstul et al 2024). As a result, the share of the overall body of EU law that consists of court-made precedent is steadily on the rise, raising significant normative questions about democracy and the judicialization of politics. At the same time, legal research has frequently critizised the Court for how it relates to precedent in its reasoning. The Court is alleged of not explaining or engaging with its previous decisions in a transparent way, only rarely acknowledging when precedent is being overruled (Sarmiento 2023) and sometimes making questionable interpretations of previous decisions out of negligence or for strategic reasons (Sadl and Hink 2014). Although it is clear that EU law is commonly subject to change in the hands of the judges in Luxemburg, the obfuscating practices of the Court makes these changes hard to track. The problem is not only with the Court, however. Previous research lacks a clear theoretical and conceptual framework for a broader assessment of to what extent and under which conditions the Court follows precedent. Such a framework needs to be independent of the Court itself, focusing on what it does rather than what it says. This paper aims to contribute to that goal by specifying theoretically what it means for the Court to follow precedent. While the distinction in common law between applying, overruling and distinguishing precedent works as a starting point, more precision is needed when it comes to differentiating different forms of treatments of precedent. Furthermore, our theoretical framework will be connected to precise operationalisations and measurements of key concepts, laying the groundwork for a new empirical approach to studying legal change in the EU. References: Fjelstul, J., Lindholm, J., Naurin, D., and Ovadek, M. (2024). ”Theorizing and Measuring the Precedential Value of Case Law: Lessons from the European Union”. Paper presented at APSA, Philadelphia. Sadl, U. and Hink, S. (2014). “Precedent in the Sui Generis Legal Order: A Mine Run Approach”. European law journal, 20(4):544–567. Sarmiento, D. (2023). “The ’overruling technique’ at the Court of Justice of the European Union”. European Journal of Legal Studies, pages 107–146. Schauer, F. (1987). “Precedent”. Stanford Law Review, 39(3):571–605. Tridimas, T. (2012). “Precedent and the Court of Justice”. In Philosophical Foun- dations of European Union Law. Oxford: Oxford University Press.