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Interlocking Legal Orders in the European Union and Comparative Law

Published online by Cambridge University Press:  17 January 2008

Koen Lenaerts
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Extract

Even if an external observer who takes an interest in the case-law of the Court of Justice of the European Communities and of the Court of First Instance of the European Communities may not have such an impression at first sight, comparative law plays a central role in the activities of these courts. It means much more than simply looking at solutions given to certain problems in the legal orders of the Member States. As a former president of the Court of Justice rightly observed, recourse to comparative law is for the Court of Justice essentially a method of interpretation of Community law itself.1 For the Court of Justice and the CFI (below often referred to as ‘Community judge’ or ‘Community courts’), it is one method amongst other methods of interpretation of the law (such as literal, exegetic, historical, systematic interpretation) and it constitutes a tool for establishing the law.2

Type
Research Article
Information
International & Comparative Law Quarterly , Volume 52 , Issue 4 , October 2003 , pp. 873 - 906
Copyright
Copyright © British Institute of International and Comparative Law 2003

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References

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42 Term used by Hilf, op cit, 563–4; see also Pescatore, op cit, cited in n 3 above, 356 and 359.Google Scholar

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47 See, in particular, Kakouris, CN, ‘Do the Member States possess judicial procedural “autonomy”?’, Common Market Law Review (1997) 1389–1412; Lenaerts and Arts, op cit, 3–4;CrossRefGoogle ScholarStrays, M, ‘Le droit communautaire et l' application des régies procédurales nationales’, Journal des tribunaux—Droit européen (2000) 49–53.Google Scholar

48 This obligation of sincere cooperation imposed on the national authorities (notably judicial authorities) is, in fact, the counterpart of the ‘federal loyalty’ obligation which the Community authorities have under Art 10 EC vis-à-vis the national legal orders (see order of the Court of Justice of 13 July 1990, in Case C-2/88 Imm, Zwartveld and Others [1990] ECR 13365, paras 16–18).Google Scholar

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73 Case 5/71, Zuckerfabrik Schöppenstedt v Council [1971] ECR 975.Google Scholar

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76 Joined Cases C-6/90 and C-9/90, Francovich and Others [1991] ECR I-5357.Google Scholar

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86 Ibid, para 30.

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94 Case T-184/95, Dorsch Consult v Council and Commission [1998[ ECR II-667.Google Scholar

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96 Ibid, paras 76–9.

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104 Case C-249/96, Grant [1998] ECR I-621.Google Scholar

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109 Case 11/70, Internationale Handelsgesellschaft, [1970] ECR 1125.Google ScholarSee Koopmans, , ‘Comparative Law and the Courts’, op cit, 547;Google ScholarUsher, JA, General Principles of EC Law (London/New York, Longman, 1998), 37–51.Google Scholar

110 Joined Cases 205 to 215/82, Deutsche Milchkontor [1983] ECR 2633.Google ScholarSee, in particular, Belaich, F, ‘La répétition de l'indu en droit communautaire dans la jurisprudence de la Cour de justice des Communautés européennes’, Revue du Marché commun et de I'Union européenne (2000), 113–14; see also Usher, op cit, 52–64.Google Scholar

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113 AM & S v Commission, cited in n 18 above.Google Scholar

114 Arts 81 and 82 EC (ex-Arts 85 and 86 of the EC Treaty).Google Scholar

115 Council Regulation No 17 of 6 Feb 1962. First regulation implementing Arts 85 and 86 (now Arts 81 and 82) of the Treaty, OJ Special Edition [1959–1962], p 87.Google Scholar

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119 See, on this judgment, Galmot, op cit, p 256–7.Google Scholar

120 Case 59/85, Reed [1986] ECR 1283.Google Scholar

121 Council Regulation No 1612/68 of 15 Oct 1968 on freedom of movement for workers within the Community (OJ, Special Edition, 1968 (II), 475).Google Scholar

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125 de Wilmars, Mertens, op cit, 39.Google Scholar

126 See, on this subject, Pescatore, op cit, cited in n 3 above, 354.Google ScholarSee also Dehousse, R, ‘Comparing National and EC Law: The Problem of the Level of Analysis’, Working Paper of the European University Institute at Firenze (1994/1993), 2.Google Scholar

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128 Case C-126/97, Eco Swiss [1999] ECR I-3055.Google Scholar

129 Ibid, para 45.

130 Ibid, para 46.

131 Ibid, paras 47 and 48.

132 Opinion of Advocate-General A Saggio in Case C-126/97, Eco Swiss [1999] ECR I-3055, I-3057, para 48.Google Scholar

133 Case 106/77, Simmenthal [1978] ECR 629.Google Scholar

134 Case 35/76, Simmenthal [1976] ECR 1871.Google Scholar

135 Simmenthal II, cited in n 133 above, para 22.Google Scholar

136 Ibid, para 24.

137 Ibid.

138 Case C-213/89, Factortame and Others [1990] ECR I-2433.Google Scholar

139 Ibid, para 18.

140 Ibid, para 19.

141 Ibid, paras 18–21.

142 Ibid, para 23.

143 Opinion of Advocate-General G Tesauro in Factortame, cited in n 138 above, I-2450, para 23 of Opinion.Google Scholar

144 Struys, M, op cit, 49.Google Scholar

145 See, eg, Case 33/76, Rewe [1976] ECR 1989, and Case 45/76, Comet [1976] ECR 2043.Google Scholar

146 See case law referred to by Struys, M, op cit, 50.Google ScholarWith respect to the difficulties of putting these principles into operation, see Hoskins, M, ‘Tilting the Balance: Supremacy and National Procedural Rules’, European Law Review (1996) 365–77.Google Scholar

147 Joined Cases C-430/93 and C-431/93, Van Schijndel and Van Veen [1995] [ECR] I-4705.Google Scholar

148 Ibid, para 10.

149 Ibid, para 13.

150 Ibid, para 14.

151 Ibid, para 15.

152 Ibid, para 20.

153 Ibid, para 21.

154 Joined Cases C-430/93 and C-431/93, Van Schijndel and Van Veen [1995] [ECR] I-4705, para 22.Google Scholar

155 Case C-72/95, Kraaijeveld and Others [1996] ECR I-5403.Google Scholar

156 Ibid, para 60.

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158 Eco Swiss, cited in n 132 above.Google Scholar

159 Cited in n 147 above.Google Scholar

160 Ibid, para 35.

161 Ibid, paras 36 and 37.