Effet Utile and the Rule of Law: The Internal and External Morality of EU Law

Justin Lindeboom

Effet utile is the principal structuring mechanism in the case law of the Court of Justice of the European Union, ensuring the effective enforcement of EU law in the Member States. In this respect, effet utile is strongly linked to the Rule of Law, as it ensures that EU law actually rules. This paper observes that this function of effet utile is a central aspect of what Lon Fuller referred to as the ‘internal morality of law’. Simultaneously, however, the ECJ’s strong preoccupation with the supremacy and autonomy of EU law in Opinion 2/13 is difficult to reconcile with thicker conceptions of the Rule of Law and the ‘external morality’ of the law, such as the arguable need for external control and substantive fairness. This paper identifies effet utile as a double-edged sword: effectiveness is a necessy element of the internal morality, and an uneasy bedfellow for the external morality of EU law. It will then be contended that this paradox goes beyond thin versus thick Rule of Law conceptions. Instead, what it actually exposes is what Ronald Dworkin calls theoretical disagreement: disagreement about the grounds of law, or the scope of law and the criteria for legal validity. Whether effet utile as developed in the case law of the CJEU is a blessing or a curse for the Rule of Law depends on what it is that must rule when we speak of the imperative of the rule of law. This paper concludes by arguing that as long as there is no clear conceptualisation of the EU legal system, the requirements that the Rule of Law imposes on EU law and the CJEU’s case law cannot be identified.

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