Academic

van Harten on European Law Precedents of National Courts

By Lawrence Solum

Herman van Harten (University of Amsterdam - Faculty of Law) has posted National European Law Precedents on SSRN. Here is the abstract:

Although EU law doctrine stresses the vital importance of national courts in the EU judicial system, it is remarkable that research in this field has a much more top-down focus (i.e. what are the consequences of case-law of the ECJ for national courts?), than a bottom-up approach (i.e. what could the ECJ and European legal doctrine learn from the case-law on EU law of national courts?).

Structural research into decentralized EU case-law is still rather limited and the theorization on the fundamental questions which the actual national court practice gives rise to, seems to be scarcely out of the egg. This paper elaborates on a development of what I would like to call ?national European law precedents?: autonomous interpretations of free movement law by Dutch courts that set precedents for future cases in the field of services and establishment.

First of all, this paper introduces the concept of ?national European law precedents?. Secondly, it discusses some of the various forms which come forward in the Dutch case-law on the freedom of establishment and free movement of services. Thirdly, it elaborates on the doctrinal questions and consequences that this decentralized development may lead to and how we should place this development of fact and law in the broader context of the judicial system of the EU.

Full post as published by Legal Theory Blog on June 15, 2009 (boomark / email).