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 3: The Law in Action

Giuseppe Martinico and Oreste Pollicino

Subjects: law - academic, european law


GOALS AND STRUCTURE OF THE CHAPTER Having recalled the constitutional framework in Chapter 2, and following the scheme anticipated in Chapter 1, we are going to provide a detailed analysis of the relevant domestic case laws, taking into account not only the decisions given by the Constitutional and Supreme Courts but also trying to go beyond them, touching the application of European law in litigation before common judges (i.e. administrative and ordinary judges). Finally, in the very last part of this chapter we are going to stress those elements that we perceive as shared in the national judicial treatment of the ECHR and EU law. 2. LAW IN ACTION: EUROPEAN LAWS BEFORE (NATIONAL) COURTS Austria In Austria, the Constitution seemingly does not allow the Constitutional Court to review national legislation under EU law and, in fact, the respect of the Simmenthal doctrine is entrusted to the common judges. This is different from the national treatment of the ECHR, since the ECHR, as we specified in Chapter 2, belongs to the constitutional block and this implies that the competence to review national statutes under the ECHR is part of the business of the Constitutional Court.1 Especially since the 1980s, the system has been deeply influenced by the ECHR and it is possible to appreciate such an influence in the case law of the Austrian Constitutional Court.2 In case of conflict between national law and the ECHR, if this issue cannot be solved by means of a consistent interpretation, such a conflict...

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