Precedent in the European Court of Justice and the Court of First Instance

Abstract

Although the doctrine of binding precedent is distinctive of Common law jurisdictions, there is clearly a tendency in all developed legal systems – including those of the European countries who were the founder and formative members of the Communities – for previous cases to be used as guidance in deciding current ones. In the case of the European Court of Justice itself, however, the lack of any concept of strict bindingness in the legal traditions from which Community law sprang was compounded by the fact that the early years of a new legal order are likely to put a premium on the kind of creativity which might seem to be diametrically opposed to the atavistic tendencies inherent in a system of bindingness. (Since there is no distinction between the European Court of Justice and the Court of First Instance for the present purposes, this chapter will adopt the expedient of referring to both courts by the name of the former.)