Jurisprudence and the Judicial Precedent of the European Court of Law as Sources of Law

AuthorIulia Boghirnea, Elise Vâlcu
Pages253-258

Iulia Boghirnea. Lecturer, Ph.D., Faculty of Law and Administrative Sciences, University of Pitesti (e-mail: iuliaboghirnea@yahoo.com).

Elise Vâlcu. Lecturer, Ph.D., Faculty of Law and Administrative Sciences, University of Pitesti (e-mail: elisevalcu@yahoo.com).

Page 253

1. Introduction

In literature there is no uniform classification of the sources of Community law. There are two main categories of sources of law: primary/originating sources and secondary/derived sources. Literature holds as regards the European Court of Justice, which it is a Community institution that contributes to the goals put in front of the treaties, treaties which they interpreted and applied in the light of the Community law, having the monopoly of interpretation, which in law are mandatory, it is thus supreme authority invested in these treaties.

2. Brief consideration of the conferring the quality of sources of law case law and previous court

Justice is in a continuous process of changing and becoming more European.

Under the influence of the Anglo-American law, judicial precedent has become one of the basic sources of international law. Thus, it increases the role of the international courts, particularly of the International Court of Justice, so that these decisions are binding on the states concerned (Art 59 of the Statute of the International Court of Justice states that “the Court’s decision has binding force only between the parties in dispute and for the litigation that settles.”). The enhancement of the role of the precedent has led to the necessity of determining the ratio between the international jurisdiction - national jurisdiction - state sovereignty, which is traditionally considered as a prerogative of the state.

The European Court of Justice in Luxembourg (The name used for this Community institution is controversial in literature. Thus, in the first sense, was used the name of “Court of Justice of the European Communities” recital on its functioning in the three EuropeanPage 254 Communities, (two European Communities following the cessation of the ECSC in 2002) and also having textual provision to that effect, referred to in the institution treaties. According to a second opinion, the name of the “European Court of Justice” seems to be an entitling “anchored” at present, the reality of the European Union which tends to include all the states of the latter. It should be noted that the provisions inserted in the Draft of the European Constitution, the Court of Justice of the European Communities was renamed the Court of Justice of the European Union entitling taken by the Treaty of Lisbon in art 9F., Valcu 2009, 211) was the sole and only jurisdiction since 1957 from the creation of the European Communities before the establishment of the Court of First Instance (CFI) (It was created by a Council decision on 24 October 1988 OJEU series L, no. 319 of 25 November 1988), which operates in addition, as auxiliary of the Court of Justice (Art. 168 A a C.E.E. and 32 quinto C.E.C.O.) and whose decisions are subject the control of the first.

The European Court of Justice is not only a judicial body (Such as the International Court of Justice, according to Art. 92 of the Charter of the United Nations) or judicial authority (Isaac and Blanquet 2001, 253), but is a true Community judicial power (Militaru 2004, 43). There is no authority that has the power to penalize its irrevocable decisions invested with the res judicata authority.

We can now ask the following questions: if the jurisprudence of the Court of Justice of the European Communities is the source of law? What practical importance has using of the jurisprudence as a source of law in the decisions taken by the national court? This would be an additional instrument, which can improve the Romanian legal practice?

Outside the sources of the Community’s law, another, not negligible, is composed of the jurisprudence of the Court of Justice of the European Communities in Luxembourg and of the Court of First Instance (CFI) which is an essential source of law whereas these institutions, including the powers with which they have been endowed have the one to address the existing gaps in treaties and to control the correct application of the Community’s law (Voicu 2007, 47; Cartou 1991, 120). As a result of these powers, the Court of Justice of the European Communities brings an important contribution to the constant development of the Community’s law.

Given that this entity is a Community...

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