The Formation of the EU Legal System

This paper examines how far, and in what way, the decision-making of the European Court of Justice (ECJ) has been integral to the formation of the European Union (EU) legal system, and what this means for the study of EU law. Taking the volume 70 Years of EU Law as a starting point, it notes that many of the concepts and principles central to EU law’s self-understanding – such as direct effect, primacy, autonomy, fundamental rights, and the rule of law – emerged and took shape in the ECJ’s rulings, entering the legal order through case law rather than by virtue of an established constitutional text. Against this background, the paper identifies two temptations arising from the centrality of case law: first, to portray the ECJ’s decisions as forming a consistent and continuous line of reasoning, without turns or leaps; and secondly, to regard those decisions as expressions of a conceptually necessary truth of law rather than as criticisable claims to the best or right reading of the law. The paper contends that these temptations are reinforced by the evolutionary scheme of legal development adopted in 70 Years of EU Law, which depicts change as gradual and natural and carries assumptions of continuity, directionality, and self-sustaining momentum. Such a scheme, the paper argues, sits uneasily with the peculiarities of a system whose basic concepts and general principles developed largely in and through case law. It fails to capture moments of genuine transformation and instances of deliberate construction, and risks obscuring the interpretive nature of adjudication and the argumentative character of legal practice. Ultimately, the paper suggests that, in our understanding of EU law’s past and present, we must cultivate an awareness of ambiguity and contradiction, and, in our analysis of the ECJ’s decisions, a sense of good and bad argument – neither of which is adequately supported by the evolutionary scheme of legal development.