Legal Autopoiesis Theory in Operation - A Study of the ECJ Case of C-446/03 Marks & Spencer v. David Halsey

Abstract

This paper has been prepared in the hope of giving new insights into the case of C-446/03 Marks & Spencer. The author tries to explore the process of communication in the light of the legal autopoiesis theory, the final result of which is the judgment. Reading it, one can find plain arguments both for the effective protection of EC freedoms, including the freedom of establishment, one the one hand, and for stopping regulatory and tax competition, and safeguarding the national interests of Member States, on the other one. The methodology of legal autopoiesis may be useful in better understanding of the message the judgment has negotiated.

Keywords: normative closure and cognitive openness, non-restriction of fundamental freedoms, effective enforcement of rights, equivalence, fiscal cohesion, grant of a last resort, reconciliation of conflicting ideas, micro perspective of harmonisation, temporality in law, filtration

JEL Classification: K34