From the Naked King to the Harlequin Costume: The New Grammar of European Judge (Del Rey Desnudo Al Traje De Arlequín: La Nueva Gramática Del Juez Europeo)
45 Pages Posted: 5 Oct 2009
Date Written: September 22, 2009
The birth of the European Union involves not only the construction of a new supranational institutional architecture, but also a new conception of law and relations between State and Communitarian bodies. While legislative and policy levels are a classic key to the process of community law integration, relations between judges - European and national - recently consolidated through the participation of the constitutional courts, are developed according to an identitarian tone which covers constitutional and civil far-reaching issues, following a new grammar, substantially hermeneutical criteria-based. The traditional critical integration points between the community legal system and national systems (primacy, direct effectiveness and State liability principles) tinge recently in a lively new axiological coloring, regardless of the rambling intergovernmental negotiations. The depth of issues, including social ones, recently addressed by the European Court of Justice needs a higher degree of judicial support both from ordinary judges and from constitutional courts, which leads to rebuild main principles of this silent judicial dialogue. The Court of Justice emphasizes, for example, the principle of consistent interpretation for the ability to save - shape national discipline in the direction indicated by European rules. This criterion also serves to break the traditional internationalist verticality of relations between supranational rules and citizens, gradually introducing thanks also to the development of European constitutional super-principles as the criterion of equality and non-discrimination, the possibility of extending the legal situations between private Community Law rules intended exclusively for States: the European directives. The traditional demarcation line between public and private law in the 19th and 20th century constitutions, are increasingly intertwining through the wire of judge-Weaver. In the process of review of judicial relations, European and national judges are called to weave a new suit- the Harlequin one- for the body of Community law, not based on the much classic hermeneutical methodology of the simple implementation of resolutions adopted by the legislator, but on the ability to critically combine Community Law with national systems. The above mentioned principles of the process of integration, therefore, gradually change their initial intrinsic structure towards a dialogic model, completely in(ter)dependent from the Constitutional Treaty, the Lisbon Treaty or the Draft of Common Frame of Reference. The role of comparative science is essential for the dialectical conjugation of two systems.
Keywords: Comparative Law, European Private Law, European Law, State liability, consistent interpretation, primauté principle
JEL Classification: K33
Suggested Citation: Suggested Citation