Roman Roots at Plateau du Kirchberg: Recent Examples of Explicit References to Roman Law in the Case-Law of the Court of Justice of the EU’ in Mater Familias: Scritti romanistici per Maria Zabłocka (2016) (original) (raw)

The aim of this paper is to analyse recent (2005-2015) examples of explicit references to Roman law in the udgments of the Court of Justice of the European Union and in the opinions of the Advocates General. The paper focuses only on explicit references to Roman law, i.e. those which openly refer to Roman law, either by using the term ‘Roman law’ or by indicating a specific reference to a Roman legal source, e.g. the Corpus Iuris Civilis or the Gai Institutiones. The study found that only 17 examples of such explicit references can be found during the period under scrutiny. A closer analysis of those examples shows that, firstly, an explicit engagement with Roman legal sources is a relatively rare phenomenon in the case-law of the CJEU; secondly, that such examples are mainly found in the opinions of Advocates General; thirdly, that the role played by explicit references to Roman law can be threefold. The qualitative analysis showed that out of the 17 explicit references to Roman law, in six cases Roman law did actually play a certain role in the legal reasoning. In nine further cases in which an explicit reference was made to Roman law, the reference did not serve any clearly identifiable purpose in the process of interpretation, but rather served to indicate the historical background. Finally, in two cases Roman law was mentioned incidentally, without the aim of using it for purposes of interpretation of an EU legal text nor the aim of giving a broader historical perspective.