The realist trend of the Court of Justice of the European Union

This Article seeks to explain the rationale behind the recent jurisprudential turn of the Court of Justice of the European Union. It identifies an enhanced trend to legal realism and articulates its three main propositions through an exploration of competition law, state aid law and trade mark law. Vigorous engagement with social fact and analytical clarity, the fundamental contributions of the Court’s realist trend, lead to knowledge and ensure that normativity, anchored in the goals and values of the Union, can gain its full thrust. Further, decoupling a more economic approach from the realist approach reveals its independent normative value. The enhanced turn to realism represents a qualitative leap of the Court’s overall judicial analysis, and is vital for effective judicial review. The Court’s realist trend thus importantly serves the right to effective judicial protection, as foreseen in Article 47 of the Charter, by avoiding arbitrariness and error in law. Any departure from the three realist propositions, for example for the sake of increased administrability, thus carries an important social cost. Bearing these insights in mind, the described trend is also of broader importance to any field of European Union law.

© Author, 2021

Working Paper, EUI LAW, 2021/11