A matter of principle for whom? The CJEU's Development of Principles and the Influential Possibilities of Member States

Abstract

With a legal philosophical focus, this thesis examines the Court of Justice of the European Union’s development of principles, using the principles of direct effect and supremacy as examples, and the member states influential possibilities, focusing on the tools of non-referral and submitting observations. The theories of legal interpretivism and legal positivism have been applied, and in order to create a social context, the development of principles and the member state tools have been analysed from the perspectives of legal certainty and democracy.

To clarify, the questions that one will find an answer to in this thesis are: How does legal interpretivists and legal positivists define the concept of principles? Is the CJEU’s development of principles in line with the concept of democracy and legal certainty, according to legal interpretivist and legal positivists? How does the member state use the tools of non-referral and submitting observations in order to influence the CJEU’s development of principles, especially the principles of direct effect and supremacy, and how effective are they? Are the tools of non-referral and submitting observations in line with legal certainty and democracy, according to legal interpretivists and legal positivists?

Concerning the results, the main points can be summarised as follows. The non-referral tool could be seen as an important tool for national courts. However, it only takes one question from one court for the tool to be circumvented. The submitting of observations is a scarcely used tool, and in cases where member states do submit observations, the Court does not rule accordingly in a majority of cases. From an efficiency point of view, both tools are quite efficient in theory but not in practice. Looking at the concept of legal certainty and democracy, the tools can be said to be in line with legal certainty according to legal positivists, but not from a legal interpretivist point of view. Concerning democracy, the opposite conclusion can be drawn. Enjoy.