Inexplicable Law: Legality's Adventure in Europe

43 Pages Posted: 28 Feb 2006

See all articles by Alexander Somek

Alexander Somek

University of Iowa - College of Law

Date Written: February 2006


European Union law regulates how it is to be known by national judicial tribunals in Europe. The process most relevant to such a knowledge determination is the so-called "preliminary reference procedure" (Art. 234 EC Treaty), which has been praised for having been indispensable for the creation of a uniform European legal system.

Roughly stated, this procedure puts the European Court of Justice in the position vis-a-vis national courts to answer authoritatively questions of interpretation where European Union law appears to be unclear. In a more recent case, which is discussed in the paper below, the question arose whether the jurisdiction of the European court also extends to cases where European Union law is, despite ostensible clarity, in fact unclear and hence in need of clarification.

This question gave rise to another one: what is the appropriate legal consequence for a national court's failure to refer a matter to the European Court when the national court believed that the law was clear, indeed, and, hence, not in need of clarification at all.

The paper begins by reminding the reader of how important the co-operative partnership is between the European Court of Justice on the one hand and national courts on the other for the implementation of the Community's legal system. It then turns to two different modes of dealing with bad court decisions against which there is no further appeal. After a short sketch of the European Court of Justice's jurisprudence on state liability it will offer a reconstruction of how the Court dealt with an instances of purported misinterpretation by a Member State Court deciding at last instance. It will be seen that the Court's precedent, even though firm in principle, is necessarily self-effacing in practice.

Keywords: EU Law, jurisprudence, legal theory

JEL Classification: K33

Suggested Citation

Somek, Alexander, Inexplicable Law: Legality's Adventure in Europe (February 2006). U Iowa Legal Studies Research Paper No. 05-41, Available at SSRN: or

Alexander Somek (Contact Author)

University of Iowa - College of Law ( email )

Melrose and Byington
Iowa City, IA 52242
United States

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