I have been studying basic Law, learning the difference between the various legal systems such as Common Law, and the Civil Legal System.
Countries that are part of the European Union (EU) are signatories to EU law, which they must follow and can surpass their decisions and laws.
I was curious as to what legal system the EU uses? I have seen Articles which give me the feeling of a Civil Legal System, but I have also found case law (I think this is EU case law?) being quoted.
I was curious as to what legal system the EU uses? I have seen Articles which give me the feeling of a Civil Legal System, but I have also found case law (I think this is EU case law?) being quoted.
The European Union (E.U.) is not a country. Each E.U. member has its own legal system. There is not a single "EU law" which sets forth a general framework of legal obligations for everyone in the E.U. on all topics, or "legal system used by the EU" in the sense of that the phrase "common law legal system" or "civil law legal system" uses that phrase.
There is no E.U. criminal law. There is no E.U. law of contracts or torts. There is no E.U. law of real property or divorce or inheritance. The E.U. provides guidelines for the tax laws of member countries but has little direct taxation and tax collection of its own. The E.U. doesn't have a military. Thus, the scope of E.U. law scope does not extend to the core subjects addressed by civil codes in civil law legal system and by the common law, in common law legal systems.
The terms "civil law legal system" or "common law legal system" are ill-defined as applied to a partial system of legal arrangements like those of the E.U., which is essentially a unique legal arrangement of its own.
Since Brexit, almost all of the members of the E.U. have civil law legal systems, except Ireland, although some Scandinavian countries are less true to that model than other E.U. countries.
Case law exists in both civil law legal systems and in common law legal system. But, the way precedents are used is different, and in a civil law legal system, in theory at least, all case law ultimately traces back to some legislative enactment, which is not true in a common law legal system. As explained here:
Unlike the Common law systems, Civil law jurisdictions do not adopt a stare decisis principle in adjudication. In deciding any given legal issue, precedents serve a persuasive role. Civil law courts are expected to take past decisions into account when there is a sufficient level of consistency in case law. Generally speaking, no single decision binds a court and no relevance is given to split jurisprudence. Once uniform case law develops, courts treat precedents as a source of 'soft' law, taking them into account when reaching a decision. The higher the level of uniformity in past precedents, the greater the persuasive force of case law. Although Civil law jurisdictions do not allow dissenting judges to attach a dissent to a majority opinion, cases that do not conform to the dominant trend serve as a signal of dissent among the judiciary. These cases influence future decisions in varying ways in different legal traditions. Judges may also be influenced by recent jurisprudential trends and fads in case law.
What are the E.U.'s courts?
The Court of Justice of the European Union (CJEU) is the judicial branch of the European Union (EU). Seated in the Kirchberg quarter of Luxembourg City, Luxembourg, this EU institution consists of two separate courts: the Court of Justice and the General Court. From 2005 to 2016 it also contained the Civil Service Tribunal. It has a sui generis court system, meaning 'of its own kind', and is a supranational institution. . . .
The CJEU consists of two major courts:
the Court of Justice, informally known as European Court of Justice (ECJ), which hears applications from national courts for preliminary rulings, annulment and appeals. It consists of one judge from each EU member country, as well as 11 advocates general.
the General Court, which hears applications for annulment from individuals, companies and, less commonly, national governments (focusing on competition law, state aid, trade, agriculture and trade marks). Since 2020 the court is composed of 54 judges, though only 49 seats are currently filled. . . .
The CJEU's specific mission is to ensure that "the law is observed" "in the interpretation and application" of the Treaties of the European Union. To achieve this, it:
reviews the legality of actions taken by the EU's institutions;
enforces compliance by member states with their obligations under the Treaties, and
interprets European Union law.
The composition and functioning of the courts are regulated by the Rules of Procedure.
(Source)
How do the European Union's courts handle precedents?
The development of a de facto precedent in EU law has recently been the subject of significant academic debate. There is no official doctrine of precedent in EU law — historically, a doctrine of binding precedent would have been entirely inappropriate in what was originally a court of first and last resort.
(Source)
The difficulty of having binding precedent in a court like the E.U. Court of Justice that is both a court of first instance and a supreme appellate court in many cases, continues to be an issue, although decisions of the general court of the Court of Justice of the European Union doesn't face a structural impediment to having a system of Court of Justice precedents to which it must adhere.
The is actually a European civic movement seeking to change the status quo and establish a formal notion of precedent in all E.U. countries in order to make law in the E.U. more uniform, at least as applied to subject within the domain of E.U. authority. The movements self-description of the issue helps clarify the situation:
Even if it seems strange to many citizens, in most EU states there is no notion of judicial precedent. Thus, the courts are not bound by judicial precedents in any way, in practice there are numerous examples where exactly the same case (for example, abuse clauses in contracts), with the same defendant, even with the same lawyers, are judged differently by different courts.
Our NGO fights for democracy and human rights and has several lawsuits with the Romanian state. We spent many hours studying jurisprudence and not a few times it happened to us that we received a decision that was in total disagreement with another one that we had invoked.
This state of fact obviously violates Art. 20 (Equality before the law) and Art. 47 (Right to an effective remedy and to a fair trial) of EU Charter of Fundamental Rights. If the same law is interpreted differently by different courts, not only is the law not the same for everyone, but the process is not fair either.
To claim the uniform application of the law, civil law systems offer certain mechanisms but which are not available to the litigant, he cannot initiate them. Even more, litigants cannot profit from such a mechanism, this having effect only for the future.
Our goal is to start a European civic initiative to try to get the Commission to issue a directive by which the notion of judicial precedent will be effectively enforced.
We are aware that the legal systems and traditions in the EU states are different, that's why we don't ask for the implementation of a certain form.
But what we do ask is for the litigant to have a concrete way to invoke a judicial proceeding and for there to be certain consequences if a judge decides to ignore a judicial precedent (recommendations are not enough, they are ignored many times and when it matters the most).
Also, keep in mind that the European Court of Human Rights and the European Convention on Human Rights are not part of the E.U., they are part of the Council of Europe, which is a separate international organization from the E.U. with 46 member states. In particular, the European Convention on Human Rights is a different instrument than the EU Charter of Fundamental Rights, which was proclaimed on December 7, 2000, but didn't gain full legal force until the Treaty of Lisbon took effect on December 1, 2009.
For the most part, E.U. law is part of the law of treaties and administrative law. Mostly, like other treaties, E.U. legal provisions are directed at getting member countries to act in particular ways, not at directly regulating the conduct of private individuals and entities.
Under primary law, the EU has only limited powers of enforcement, as EU law is usually enforced by the Member States. Furthermore, Article 291(1) TFEU adds that ‘Member States shall adopt all measures of national law necessary to implement legally binding Union acts’. Where uniform conditions for implementing legally binding Union acts are needed, the Commission exercises its implementing powers (Article 291(2) TFEU).
(Source)
There are some E.U. pronouncements that do have direct effect, primarily its "regulations" implementing prior directives or treaty terms, but even those are often applied in national courts, rather than the E.U.'s own courts.
But to the extent that E.U. specific treaties and administrative law have a flavor, for example, in their European court procedures, it is closer to the civil law system of the lion's share of its members, than it is the the common law legal system.
