Goodbye van Gend en Loos, Hello Bosman? Using Network Analysis to Measure the Importance of Individual CJEU Judgments

• DOI: http://doi.org/10.1111/eulj.12077
• Author: Mattias Derlén,Johan Lindholm
• Published date: 01 September 2014
• Date: 01 September 2014

Goodbye van Gend en Loos, Hello

Bosman? Using Network Analysis to

Measure the Importance of Individual

CJEU Judgments

Mattias Derlén and Johan Lindholm*

Abstract: It is generally agreed that some judgments by the Court of Justice are more

important than others, but the ability of traditional legal methods to identify such

judgments is inherently limited. In this article, we apply various tools developed in

network analysis to identify which judgments are the most important as legal

precedents. The study reveals that certain well-known judgments, like van Gend en

Loos, have limited importance as precedents, while other judgments, like Bosman,

PreussenElektra and Schumacker, are likely overlooked.

I Introduction: Asking an Odd Question

The title of this article might appear provocative, especially as we celebrate the 50th

anniversary of van Gend en Loos, the judgment delivered by the Court of Justice of the

European Union (CJEU) on 5 February 1963.1This judgment is widely considered the

most important judgment ever given by the Luxembourg court.2But what do we

mean by important? The legal importance of a judgment of the CJEU can be under-

stood in several dimensions.

First, and most obvious, a judgment can be of significant importance to the parties,

in the sense that it resolves an ongoing dispute to the advantage of one of

* Mattias Derlén, LL.D., Senior Lecturer, University of Umeå, Sweden; Johan Lindholm, LL.D., Senior

Lecturer, University of Umeå, Sweden. The authors are members of the Centre of European Law and

International Trade Law. Contact: mattias.derlen@jus.umu.se and johan.lindholm@jus.umu.se. We

would like to thank the participants of the European Law Discussion Group at the Institute of

European and Comparative Law, Oxford University, for valuable comments and suggestions.

1Case 26/62, NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v. Netherlands Inland

Revenue Administration [1963] ECR 3.

2See eg D. Tamm, ‘The History of the Court of Justice of the European Union Since its Origin’, in A.

Rosas et al. (ed), The Court of Justice and the Construction of Europe: Analyses and Perspectives on Sixty

Years of Case-law—La Cour de Justice et la Construction de l’Europe: Analyses et Perspectives de Soixante

Ans de Jurisprudence (Springer, 2013), at 9, 23 and 25; D. Zaring, ‘Rulemaking and Adjudication in

International Law’, (2008) 46 Columbia Journal of Transnational Law 563, 592–593; P. Craig and G de

Búrca, EU Law (Oxford University Press, 5th edn, 2011), at 183; E.F. Hinton, ‘Strengthening the

Effectiveness of Community Law: Direct Effect, Article 5 EC, and the European Court of Justice’,

(1998–1999) 31 N.Y.U. Journal of International Law and Policy 307, 314–315; D. Chalmers, G. Davies and

G. Monti, European Union Law: Cases and Materials (Cambridge University Press, 2nd edn, 2010), at 14.

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European Law Journal, Vol. 20, No. 5, September 2014, pp. 667–687.

© 2013 John Wiley & Sons Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

them. Understood in this way, essentially every judgment by any court is important.

The van Gend en Loos judgment was certainly important to the company challenging

the Dutch customs duties.

Second, a judgment can be historically important, revealing a change in direction or

a new line of thought. From this perspective, the question in the title of this article

should naturally be answered in the negative; it is beyond dispute that van Gend en

Loos is the sine qua non of EU law as we know it today.

However, the importance of individual judgments often refers, explicitly or implic-

itly, to a third kind of importance: the value of the judgment as a source of law, or

differently put, as precedent.3Understood in this way, an important judgment estab-

lishes a legal rule or principle that is employed to resolve future issues, thereby

distinguishing itself from judgments doomed to spend eternity on the ash heap of legal

history. How does van Gend en Loos measure up according to this kind of impor-

tance? Regarded as an independent source of law, is van Gend en Loos the most, or

one of the most, important judgments of the CJEU?

When seeking to answer this question, we encounter a methodological challenge.

The importance of one CJEU judgment is by necessity relative to all of its other,

currently almost 10 000 rulings, and traditional legal methods are obviously ill-

equipped to handle a material of this size. This article seeks to identify the most

important CJEU judgment, in terms of precedential value, by way of an empirical

approach. More precisely, we apply methods developed in network science to the

case-law of the CJEU.4In the last 15–20 years, network analysis has been employed

in an expanding number of scientific fields.5We believe that the same methods can

serve a purpose in EU law, not as a replacement for traditional legal methods, but to

provide fresh perspectives and alternative outlooks. However, before employing the

new tools, we need a baseline for comparison, which in our case consists of textbook

citations and citations by the Advocates General.

II What Do Academics and Advocates General Think?

Establishing a Baseline

Everyone that has studied EU law knows that law professors consider knowledge of

the Court’s case-law indispensable, but what judgments do they consider to be most

important? One way of answering this question is by considering how frequently

different judgments are cited in general textbooks in EU law. We believe it is reason-

able to assume that that there is a correlation between, on one hand, how import-

ant the textbook author believes a CJEU judgment is for the purpose of learning

EU law and, on the other, how frequently he or she refers to it. Such a measure-

ment is not capable of identifying important precedents, but we argue that it

3We here follow Komárek in using a broad and generic definition of precedent: ‘a prior judicial decision

which has normative implications beyond the context of the particular case in which it was delivered’,

J. Komárek, Judicial Lawmaking and Precedent in Supreme Courts, LSE Law, Society and Economy

Working Papers 4/2011, 3–4.

4See Derlén & Lindholm, Goodbye van Gend en Loos, Section III below.

5See eg R. Albert, H. Jeong and A. Barabási, ‘Diameter of the World-Wide Web’, (1999) 400 Nature 130;

A. Barabási and R. Albert, ‘Emergence of Scaling in Random Networks’, (1999) 286 Science 509;

S. Redner, ‘How Popular Is Your Paper? An Empirical Study of the Citation Distribution’, (1998) 4 The

European Physical Journal B 131; G.F. Davis, M. Yoo and W.E. Baker, ‘The Small World of the

American Corporate Elite, 1982–2001’, (2003) 1 Strategic Organization 301.

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