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The European Court of Justice and the Policy ProcessThe Shadow of Case Law$
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Susanne K. Schmidt

Print publication date: 2018

Print ISBN-13: 9780198717775

Published to Oxford Scholarship Online: February 2018

DOI: 10.1093/oso/9780198717775.001.0001

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Case-Law Development between Path Dependence and Legal Uncertainty

Case-Law Development between Path Dependence and Legal Uncertainty

(p.50) 3 Case-Law Development between Path Dependence and Legal Uncertainty
The European Court of Justice and the Policy Process

Susanne K. Schmidt

Oxford University Press

Chapter 3 turns to the analysis of case-law development. The overlapping nature of EU and domestic legal orders, coupled with the great material detail in the EU Treaty, leads to a state of legal uncertainty concerning the reach of EU law. Some private actors benefit from drawing on this supranational, alternative legal setting. The interpretation of the four freedoms and citizenship shows that legal uncertainty about the Treaty’s ever-broader scope is embedded in a path-dependent interpretation of rights. Principles established in one area are transferred to other areas, as most private actors perceive there to be benefits from such a transfer and legitimize their claims through established principles. Legal uncertainty and path dependence appear contradictory, but they are helpful concepts for understanding how the Court can further the stability and predictability of European law while giving new incentives for further integration.

Keywords:   Path dependence, legal uncertainty, case-law development, four freedoms, EU citizenship

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