The Interaction between Europe’s Legal Systems
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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.
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Chapter 6: The Enlargement of Europe to the East and the Reaction of the European Court of Justice

Giuseppe Martinico and Oreste Pollicino


NEW CHALLENGES FOR THE ECJ The further centralization of the ECtHR’s adjudication powers, which were analyzed in the previous chapter, along with the reduction (even if, as Lautsi 2 shows, with prominent exceptions) of the margin of appreciation of the contracting States, need not be regarded as a foolish leap into activism by the Strasbourg judges. This is because, in the words of Wojciech Sadurski: ‘if there is a domain in which concern over national identity and accompanying notions of sovereignty are obviously weak in central and eastern Europe it is in the field of protection of individual rights.’1 It should also be added that, in support of its new post-enlargement attitude of judicial activism, the ECtHR could count on the remarkable openness of the constitutions of Central and Eastern European (CEE) Member States to international law, especially international law on human rights.2 This openness – a reaction to the very weak, almost non-existent, role played by international law in the legal orders of CEE countries, even at constitutional level, under the Soviet dominance3 – finds its concrete expression in the monistic vocation of the new constitutions and in the rank granted to international law, which almost everywhere occupies an 1 The main reason, according to Sadurski, is that ‘the legacy of Communism under which individual rights were systematically trampled on is still fresh in many people’s minds’. See W. Sadurski, ‘The Role of the EU Charter of Fundamental Rights in the Process of the Enlargement’, in G.A. Bermann and K. Pistor...

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