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The Economics of Harmonizing European Law

Edited by Alain Marciano and Jean-Michel Josselin

One of the major effects of the continual process of European integration is the growing importance of transnational institutions and the accompanying legal harmonization. Such institutional changes have led to a seemingly irreversible transformation in public decision making, whereby power at the national level is displaced to the European and regional levels. This essential book provides a law and economics analysis of the challenges arising from these shifts in authority.
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Chapter 4: Judicial competition, legal innovation and European integration: an economic analysis*

Sophie Harnay and Isabelle Vigouroux


Sophie Harnay and Isabelle Vigouroux 4.1 INTRODUCTION European legal integration has deeply transformed the nature of the European Community (EC). Repeated decisions by the European Court of Justice (ECJ) in the direction of the constitutionalization of the initial set of European Treaties, the so-called ‘judicial activism’ of the fifteen judges of Luxembourg, and the growing importance of the European jurisprudence have gradually affected not only the content of domestic law of member states but also the legal enforcement process by their national courts. In this respect, one of the major questions posed by the evolution of the Community relates to the relationship between the European Court of Justice and national judges. The trickiness of the issue stems from the possible contradiction between the empowerment of the former and the preservation of the latter’s role. In particular, the national courts’ acceptance of the European legal integration, their willingness to enforce European law within national legal orders, even if widely investigated by legal scholars and political scientists, have received (to our knowledge) relatively few echoes among lawyer economists, although it is an issue about which economic tools may prove their relevancy. The problem that has to be explained is the influence of coexisting judiciaries on the European integration process. A usual analysis refers to the respective empowerment of national and European judges. The emphasis is put on the vested interest of national judges to promote EC law. Once they have become aware that European integration could help them to increase their power...

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