The Interaction between Europe’s Legal Systems

The Interaction between Europe’s Legal Systems

Judicial Dialogue and the Creation of Supranational Laws

Giuseppe Martinico and Oreste Pollicino

This detailed book begins with some reflections on the importance of judicial interactions in European constitutional law, before going on to compare the relationships between national judges and supranational laws across 27 European jurisdictions. For the same jurisdictions it then makes a careful assessment of way in which ECHR and EU law is handled before national courts and also sets this in the context of the original goals and aims of the two regimes. Finally, the authors broaden the perspective to bring in the prospects of European enlargement towards the East, and consider the implications of this for the rapprochement between the two regimes.

Chapter 1: The Interaction between Europe’s Legal Systems: An Introduction to the Investigation

Giuseppe Martinico and Oreste Pollicino

Subjects: law - academic, european law

Extract

GOALS OF THE RESEARCH 1. This book examines the broad issue of the rapprochement between the EU and ECHR legal systems. While there is a massive amount of literature in terms of monographs, collected volumes and national reports analyzing either the issue of the national application of EC/EU law or that of ECHR norms, a specific comparative analysis that takes into account the national judicial treatment of both laws is still lacking. This volume aims to answer the following research question: Are the EU and ECHR legal systems converging? By ‘convergence’ we mean the possibility of encountering those structural principles that have traditionally contributed to the sui generis nature of EU law – namely direct effect and primacy – when dealing with the ECHR. This means that we are not going to compare the levels of protection of fundamental rights in these contexts but rather the impact that these two European legal systems have on national legal structures. In order to answer this research question we are going to compare both the national judicial treatments of these two European legal systems and the interpretative approaches employed by the Strasbourg and Luxembourg Courts in cases that are sensitive for the national constitutional structures. This means that while the first part of this volume is going to focus on how national judges ‘apply’ EU law and the ECHR, the second part is going to be devoted, instead, to the European Courts, with an analysis of their origins and then of their recent attitudes. The...