The 'overruling technique' at the Court of Justice of the European Union

Abstract

The 'overruling technique' has been used in the past by the Court of Justice of the European Union. Whilst the cases of explicit overrulings are very scarce, a broader range of indirect or tacit overrulings exist in the case-law. All these developments have taken place always in the context of preliminary ruling procedures, which confirm the importance of Article 267 TFEU, as well as the flexibility that this means of dialogue with national courts provides to the Court of Justice. The trend of overrulings shows that the search for consistency within a legal order is not a simple task, and courts attempt to minimize the derogation or departure from precedent, even by camouflaging such changes as natural or spontaneous developments in the case-law. In this contribution a theoretical framework will be provided to explain the practice of the Court of Justice when derogating precedent. A distinction will be proposed between trends that amount to overrulings: evolution, clarification and reconsideration. It will be argued that further transparency is needed when the Court undertakes an overruling, and several proposals will be made in this regard.