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 5: The Enlargement of Europe to the East and the Reaction of the European Court of Human Rights

Giuseppe Martinico and Oreste Pollicino

Subjects: law - academic, european law


INTRODUCTION Chapter 4 highlighted the differences as well as the common traits characterizing the genesis and first three decades of the EC and ECHR integration processes. At this point, it is necessary to enter more directly in medias res and focus on the enlargement to the east that has re-defined the Council of Europe and the European Union’s boundaries in recent years. The process of enlargement to the east, as we will see, presented different challenges for the two supranational organizations in question, provoking different, if not conflicting, reactions in the two European Courts. The questions addressed in the next two chapters are whether, and, if so, to what extent, because of the mentioned different challenges, and the consequent varied, if not opposite, judicial reactions in Luxembourg and in Strasbourg, the two European Courts may, in a quite paradoxical way, have involuntarily started to converge in terms of their ‘idea’ of the domestic effects of EU law and the ECHR in the legal orders of the Member States of the two supranational organizations. This chapter will concentrate on the new challenges the ECtHR had to face following the enlargement to the east of the Council of Europe. Successively it will deal with the ECtHR’s reactions to the enlargement, which seem to indicate that its case law has taken a new direction and affects Member State sovereignty to a much greater extent than in the past. Chapter 6 is an in-depth study of the new scenario that the enlargement to the...

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