Why Do the European Court of Justice Judges Need Legal Concepts?

• Published date: 01 November 2008
• Date: 01 November 2008
• DOI: http://doi.org/10.1111/j.1468-0386.2008.00438.x
• Author: Dorota Leczykiewicz

Why Do the European Court of Justice

Judges Need Legal Concepts?

Dorota Leczykiewicz*

Abstract: The article considers the reasons why the European Court of Justice (ECJ)

judges need legal concepts when they pronounce their judgments. It points out that the ECJ

as a law-interpreting and an ipso facto law-making court needs legal concepts to commu-

nicate results of its interpretative and law-making enterprise. The article also shows how in

the context of Article 234 EC preliminary ruling procedure legal concepts become useful

tools of portraying ECJ judgments as mere products of interpretation and not as the results

of subsuming the facts of the case into a legal provision. It is by means of application of legal

concepts, that the ECJ judges are able to justify that they are not overstepping the mandate

they have been entrusted with. In the same time the use of legal concepts enables them to

engage in dialogue with national judges, who seek guidance as to the content of EC law rules,

and to maintain a strong doctrine of precedent. Most importantly, however, the use of

concepts promotes coherence which, the article maintains, is the primary source of Com-

munity law’s authority, and thus constitutes the foundational technique of persuading the

relevant audience that Community law is indeed a legal system.

I Introduction

The aim of this article is to explain why the European Court of Justice (ECJ) judges

need legal concepts when they reason on issues of Community law and deliver their

judgments.1The answer I am going to provide is not, of course, a conclusion drawn

from psychological inquiry into the desires and motivations of judges. Nor is it a

sociological observation, which would also require proper experimental data. More

properly, this article rests on rational reconstruction of reasons which the ECJ judges

have for needing legal concepts. This rational reconstruction takes into account theo-

retical explanations of judicial role against the background of the institutional and

political environment in which the Court functions, as well as the goals and objectives

that are reasonably ascribable to its members. From this perspective, the reasons why

* DPhil Candidate, University of Oxford; Stipendiary College Lecturer in Law, Lady Margaret Hall,

Oxford.

1It is not my objective in this article to resolve the conflict or the confusion what a legal concept is, how it

differs from a legal term and what makes the concept legal. In that respect I would like to rely on the

lawyerly intuition of the reader. I hope it can be agreed that the following features are shared by legal

concepts: (1) there exists a way of distinguishing legal concepts from non-legal concepts; (2) legal concepts

are a significant characteristic of legal systems and of what we call legal reasoning; (3) legal concepts are

more similar to categories than to individual items.

European Law Journal, Vol. 14, No. 6, November 2008, pp. 773–786.

© 2008 The Author

Journal compilation © 2008 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA