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 2: The Formal Parameter

Giuseppe Martinico and Oreste Pollicino

Subjects: law - academic, european law


1. NATIONAL JUDGES AND SUPRANATIONAL LAWS: GOALS AND STRUCTURE OF THIS PART OF THE VOLUME The aim of this section is to answer the question: ‘Are national judges extending the structural principles of EU law (primacy and direct effect) to the European Convention on Human Rights’? In this part, comprising Chapters 2 and 3, we do not intend to examine the broader issue of the rapprochement between the legal systems of the EU and the European Convention on Human Rights (ECHR), but to concentrate on how national judges treat the ECHR compared with how they treat EU norms. Here we investigate the similarities and differences between the national judicial treatment of the ECHR and EU laws in the context of some selected constitutional experiences. We examine whether or not national judges treat the ECHR and EU law in the same manner, and the extent to which they facilitate the convergence of these laws. In this respect the goal of the part is to study the judicial application of the ECHR and EU law to analyse the vertical relationship between the national judges (both constitutional and ordinary judges) and these forms of external laws. In the economy of this part, our investigation is limited to the vertical dimension of convergence. We have structured this part in two chapters. The present chapter offers a first look at the ‘constitutional variety’ existing in terms of constitutional provisions devoted to the impact of the ECHR and EU law on the national systems. In the...

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