Edited by Mark Dawson, Bruno De Witte and Elise Muir
Chapter 8: The European Court of Justice and the duty to respect sensitive national interests
The editors of this book kindly asked the author to reflect on the ways in which the European Court of Justice may demonstrate more responsiveness towards sensitive national interests. Two opposing claims immediately and irresistibly colonized his mind – to which he first yielded, perhaps as a way to avoid facing a difficult issue. He first wondered if EU law had not been designed precisely as a mechanism aimed at neutralizing strong national interests. After all, the main function of the EU legal order is to compel political actors and domestic policies to incorporate European legal parameters. The job of the European Court is to accommodate sensitive national interests within the European legal principles and objectives, which are supposedly common to all Member States. The first thing one is tempted to say is that EU law has legitimately been conceived as a ‘desensitization process’. So why look for more responsiveness? The truth is that it is not enough to detect more responsive judicial strategies; some justification to do so should be provided at the same time. This leads to the second irritating claim. As a matter of fact, the Court has been pressed for a long time by recurring demands from Member States and has not turned deaf ears to these demands. Pushed by national jurisdictions and governments, it has been able to incorporate sensitive requirements relating to fundamental rights or social concerns into the EU legal order.
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