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 7: Conclusions

Giuseppe Martinico and Oreste Pollicino

Subjects: law - academic, european law

Extract

In the light of the outputs of the research presented in this book, it is possible to conclude, with regard to the supranational scenario, that there is a growing trend in the more recent case law of the ECJ and the ECtHR. Indeed, the two European Courts seem to 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. In this respect, it has been argued in the previous chapters that the above mentioned trend of convergence finds its roots in the two opposite ways in which the two European Courts have reacted to the challenges emerging from the enlargement of the European Union and of the Council of Europe towards Eastern Europe. In fact, on the one hand, the ECtHR has opted for an acceleration of judicial activism according to which the Strasbourg judges have started to amplify the direct and indirect effect of their case law on the domestic legal orders; on the other hand, the ECJ seems to have privileged, since the great enlargement of 2004, the appraisal of national constitutional values even of single Member States. Against this background, our hypothesis is that the ECJ’s recent attitude to the exploitation of EU primacy, combined with the opposite tendency of further centralization of the adjudicatory powers favoured by the ECtHR, seems to have reduced the distance between EU law and ECHR law with regard...

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