On the application of european law in (not only) the courts of the new member states: 'Don't do as I say'?
David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
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In the classical narratives of the story called European integration, national judges are said to have a 'mandate' under European law: they are 'empowered' by EC law or, in the less thrilling versions of the story, they simply become 'Community judges'. Not only are national judges obliged to apply substantive EC law, they are also requested to apply it in the way required by the Court of Justice. How, precisely, national judges are asked to apply EC law in domestic courts has traditionally been portrayed through the case law of the Court of Justice; not much attention has been paid to the reality in national courts. Over the years, the case law of the Court of Justice has created an image of a veritable European judicial Hercules: a judge who reads in many of the official languages of the European Union; who knows not only all the relevant national and European law, which he applies ex officio, but also engages in comparative interpretation of the law; who identifies himself with the European telos which he is applying on the national level; and so on. The structure of this contribution is dialectic. First, it summarises some of the requirements the case law of the Court of Justice imposes upon national judges when applying EC law. Second, a realistic assessment of the judicial capacity in these areas is provided, with (where possible) some examples from the case law of the new Member States. Finally, broader conclusions are drawn concerning the capacities and strategies of national courts in the domestic application of EC law, including some of the inspirations which the European legal order may draw from game theory.
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