Coherence and fragmentation

The objective of case law coherence was connected to the values of fairness and integrity, and located in the wider domain of the rule of law and the avoidance of arbitrary decision-making.

Attaching a note of self-responsibility to the Court, and writing specifically on its development of internal market law, Weatherill argues that ‘[t]his is not the common law, but the Court of Justice has itself chosen to lay down important statements of principle in its case law, and it is therefore obliged to “fit” its judgments within the pattern of previous decisions’.

This obligation reflects the essence of case law coherence. Fundamentally, when the Court makes interpretative choices, it should explain and rationalize those choices-especially when it departs from the law established in its previous decisions.

The converse idea of fragmentation conveys the breakdown of legal coherence. It also captures the related ruptures that occur: not only in the case law substantively but also in the underpinning values and in institutional confidence, which can in turn lead to a breakdown of institutional trust.

Importantly, fragmentation is not about difference per se. Instead, it gives us a mechanism to establish when and why difference is not justifiable.

Applying that distinction to free movement law, coherence allows appropriate judicial latitude for the accommodation of material differences either within or across the Treaty freedoms.