Game of courts: A tale of principles and institutions

• Published date: 01 May 2019
• DOI: http://doi.org/10.1111/eulj.12318
• Date: 01 May 2019

ORIGINAL ARTICLE

Game of courts: A tale of principles and

institutions

Davor Petrić*

Abstract

The ontological, terminological and conceptual confusion that surrounds the concept of ‘general

principles of European Union law’is far from being resolved. The constitutional interlocutors—

the Court of Justice of the European Union and the highest courts in Member States—have at

times fiercely argued about their different understanding of general principles, whereas European

legal scholarship has failed to convincingly clarify the intricacies surrounding this source of law.

Instead of engaging with a more abstract, theoretical question of what general principles are, this

paper reflects on the practical, functionalist question: how are they used by the Court of Justice

and what are some of their functions and implications? To do so, it enquires into contextual,

institutional and strategic features of the Court's behaviour and jurisprudence and responses of

the highest national judiciaries to this jurisprudence. The aim is to offer an alternative account of

the Court's jurisprudence on general principles.

1|INTRODUCTION

For a student of European Union (EU) law, rambling through a vast literature on general principles will come as an

interesting and highly informative exercise. One will become familiar with various institutions, legal theories,

doctrines, landmark judgments, pretty much everything that makes an exciting subject for a curious legal mind to

contemplate. However, somewhere through the middle of this journey one reaches the end of a cliff; a cliff

that stands for an ontological, terminological and conceptual void.

1

Looking back on all the knowledge that led to

this cliff, one suddenly becomes confused and asks oneself (a bit exaggerating): is it possible that I still do not have

the slightest clue about what makes the notion or the content or the concept of the term ‘general principles of

EU law’?

Our fair student should not be too hard on himself. To my understanding, at present we cannot claim to have

resolved clearly and conclusively any of these issues. This despite the fundamental importance of the general

principles for, as it used to be called, the European ‘common constitutional space’. What we do know is that the

*Assistant Lecturer and Doctoral Student at the Department of European Public Law, Faculty of Law, University of Zagreb. Email: dpetric@pravo.hr. The

article revisits and elaborates ideas first presented in Martin Belov (ed.), Rule of Law at the Beginning of the Twenty‐First Century (The Hague: Eleven Inter-

national Publishing, 2018). I am grateful to Martin Belov, Monica Bonini, Tamara Ćapeta, Martijn van den Brink, and Harm Schepel for their comments on

the earlier drafts of the text. I also thank several anonymous reviewers for their thoughtful suggestions and probing questions. All errors remain mine.

1

C. Semmelmann, ‘General Principles in EU Law between a Compensatory Role and an Intrinsic Value’(2013) 19 European Law Journal, 457, 459.

Received: 30 August 2018 Revised: 11 March 2019 Accepted: 11 March 2019

DOI: 10.1111/eulj.12318

Eur Law J. 2019;25:273–291. © 2019 John Wiley & Sons Ltd.wileyonlinelibrary.com/journal/eulj 273

interlocutors in this constitutional realm—the Court of Justice of the EU (CJEU or the Court) and the highest courts in

Member States—have in quite a number of confrontations fiercely argued about their different understanding of

general principles. These constitutional standoffs occurred periodically, proving wrong those who might have thought

that general principles were ‘case closed’. What we suspect is that EU legal scholarship failed to convincingly clarify

the intricacies surrounding general principles.

A passionate accuser would immediately shout that scholars have not been critical enough of the CJEU's case law

on general principles and of the linear (and allegedly coherent) legal narratives that the Court develops.

2

A more pru-

dent one would claim that the analyses of the Court's jurisprudence were predominantly formalistic and positivistic,

leaving out important pieces of the puzzle. What they routinely invoked as an ultimate explanation for all problems

related to general principles is a careful reading of the legal text in which all the answers can be found. The doctrine

thus concluded: everything is as it is (and as it should be) because ‘the law required so’.

3

However, and as it often happens in life, the reality did not agree with such a truth and kept providing examples that

put in serious doubt legalist fixation on logic inherent in legal text and reasoning.

4

How, then, to better approach and

analyse the general principles of EU law? One way would be through the social sciences. Scholars like Hjalte

Rasmussen and Joseph Weiler (among others) have long advocated a more sociological approach in the analysis of

European law and a better historical contextualisation of many EU legal dogmas.

5

I believe that revisiting in such a man-

ner some of the foundational myths of the EU legal order would not merely be to ‘flog a dead horse’,but could actually

help us understand better the contemporary dilemmas and controversiesthat trouble the process of European integra-

tion. The classic criticism voiced by some of the greatest writers that have written about EU law continues to resonate

and remains relevant as ever; recent legal, political, social, ideological and economic crises in the EU stand as its proof.

An immediate disclaimer here: with this modest contribution I do not dare to attempt to ultimately resolve the

confusion that surrounds the ontological, terminological and conceptual essentials related to this particular source

of EU law. Instead, leaving aside a more abstract, theoretical question of what general principles of law are, what they

mean (in substance) and what their position is in the EU legal system, I will rather reflect on a purely practical ques-

tion, a functionalist one if you wish: how are they used by the CJEU and what is their (one of many possible) function

and practical implication? To do so, I will approach the question of general principles of EU law by inquiring into con-

textual, institutional and strategic features of the CJEU's behaviour and jurisprudence.

6

In my view, the combined

reading of two theories provides a very useful analytical tool for scrutinising the case law of the Court of Justice

regarding general principles. Those two are legal realism and neo‐institutionalism.

The article is structured as follows. After introducing the key problem, I will first review the basic propositions of

the theory of legal realism and the neo‐institutionalist theory that will frame the discussion of the CJEU's jurispru-

dence on general principles. Second, I will discuss how the Court used the general principles in many landmark judg-

ments. Third, I will explain the strategic responses of the highest national judiciaries to the CJEU's general principles

case law. As with all the other areas of EU law, to get a complete, realistic and non‐idealised picture of the dynamic

2

C. Semmelmann, ‘General Principles of EU Law: The Ghost in the Platonic Heaven in Need of Conceptual Clarification’(2013) 2 Pittsburgh Papers on the

European Union,1,3.

3

J.H.H. Weiler, ‘Epilogue: The European Courts of Justice: Beyond “Beyond Doctrine”or the Legitimacy Crisis of European Constitutionalism’,inA.‐M.

Slaughter, A. Stone Sweet and J. Weiler (eds.), The European Court and National Courts. Doctrine and Jurisprudence: Legal Change in its Social Context (Hart,

1998), 365.

4

K. Alter, ‘Explaining National Court Acceptance of European Court Jurisprudence: A Critical Evaluation of Theories of Legal Integration’, in Slaughter et al.

(eds.), ibid., 227, 230–234.

5

M. Egan, ‘Toward a New History in European Law: New Wine in Old Bottles?’(2013) 28 American University International Law Review, 1223, 1233; W.

Mattli and A.‐M. Slaughter, ‘The Role of National Courts in the Process of European Integration: Accounting for Judicial Preferences and Constraints’,in

Slaughter et al. (eds.), above, n. 3, 253.

6

A recent suggestion in the literature held that analysis of the CJEU's structure and functioning could lead to ‘a greater understanding of the Court in its

institutional and social context’.See M. Dawson, ‘How Does the European Court of Justice Reason? A Review Essay on the Legal Reasoning of the European

Court of Justice’(2014) 20 European Law Journal, 423, 434. Another remark similarly proposed that ‘any appraisal of the Court's case law must acknowledge

the relevance of its institutional structure, composition and modus operandi’. See M. Adams, H. de Waele, J. Meeusen and G. Straetmans, ‘Introduction:

Judging Europe's Judges’, in M. Adams, H. de Waele, J. Meeusen and G. Straetmans (eds.), Judging Europe's Judges: The Legitimacy of the Case Law of the

European Court of Justice (Hart, 2013), 1, 6.

274 PETRIĆ