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Effet Utile In EU Law

Urska Sadl

The article examines how the Court of Justice constructed and selectively applied a particular interpretive technique (effet utile) to expand and entrench the limits of European law. The inquiry is situated in the framework of effectiveness of supranational adjudication, and more concretely, in the context of incrementalism as one of the factors that secure effective adjudication and judicial authority. To validate the thesis of incrementalism the article qualitatively (legal analysis) and quantitatively (citation network analysis) examines all occurrences of effet utile in the so-called historic case law of the Court, presented to the accession countries in 2004, 2007 and 2013. It compares the characteristics of these "historic effet utile cases" to (1) the full sample of historic case law (50 cases in total), (2) to the group of effectiveness cases, in which the concept appears either in the text or the title (1707 cases in total), and (3) to the full network of more than 9500 cases, decided by the Court between 1954 and 2013. The goal is to tease out the general differences between the datasets and empirical particularities of effet utile cases, and analyze them systematically. The findings suggest first, that only a few effet utile cases had a considerable impact on the case law, second, that they reinforced and expanded a specific type of EU law, namely fundamental doctrines of European law, third, that they did so in the period, characterized as the period of expansion in legal literature and fourth, that the expansion was not linear but incremental.The main contribution of the article is first, a comprehensive understanding of effet utile through a systematic empirical inquiry and second, a deeper insight into the maintenance of supranational judicial authority longue durée.

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