Characteristics of Precedent: The Case Law of the European Court of Justice in Three Dimensions

Abstract

The case law of the Court of Justice of the European Union (CJEU) is one of the most important sources of European Union law. However, case law's role in EU law is not uniform. By empirically studying how the Court uses its own case law as a source of law, we explore the correlation between, on the one hand, the characteristics of a CJEU case—type of action, actors involved, and area of law—and, on the other hand, the judgment's “embeddedness” in previous case law and value as a precedent in subsequent cases. Using this approach, we test, confirm, and debunk existing scholarship concerning the role of CJEU case law as a source of EU law. We offer the following conclusions: that CJEU case law cannot be treated as a single entity; that only a limited number of factors reliably affect a judgment's persuasive or precedential power; that the Court's use of its own case law as a source of law is particularly limited in successful infringement proceedings; that case law is particularly important in preliminary references—especially those concerning fundamental freedoms and competition law; and that initiating Member State and the number of observations affects the behavior of the Court.

Speaking Law to Power: The Strategic Use of Precedent of the Court of Justice of the European Union

“…The characteristics of the EU citation network have been described and discussed elsewhere (Derlén & Lindholm, 2014, 2015). Similar to the citation networks of the U.S. Supreme Court (Fowler, Johnson, Spriggs, Jeon, & Wahlbeck, 2007) and the ECtHR (Lupu & Voeten, 2012), most cases are cited by relatively few other cases, while a few cases are heavily cited.…”

Simulating Subject Communities in Case Law Citation Networks

“…In place of k − and k + above, we use Kleinberg's [51] authority and hub scores. These have been shown to accurately recover legallysignificant cases from CLCNs [2,3,5,40,52]. We denote authority and hub scores as A(k − ) and A(k + ) respectively.…”

“…Including 5 baselines, subject models, and alternative normalizations, a total of 16 different models are run for 50 iterations each. 5 To promote comparisons across models, we fix a few key parameters in our simulations. First, |N t | is fixed universally at 1.…”

“…Fowler et al [2,3] pioneered using centrality analysis to quantify the authority of USSC precedent. This inquiry has been since been extended and applied to other courts [4] such as the Court of Justice of the European Union [5], the European Court of Human Rights [6], and the Singapore Court of Appeal ("SGCA") [7]. Examining case law citation networks ("CLCN"s) from the Supreme Courts of the United States, Canada, and India, Whalen et al [8] find that cases whose citations have low average ages, but high variance within those ages are significantly more likely to later become highly influential.…”

Application of the Doctrine of Binding Precedent in Malaysia: A Re-Evaluation

“…Larsson, Naurin, Derlén, & Lindholm, (2017) indicated that legal factors and more complex cases could increase the use of precedent. Meanwhile, Derlén & Lindholm (2015) discovered that the precedential power of a judgment is positively correlated to the number of cases.…”