L’Europa delle Corti sovranazionali: una storia di judicial activism tra tutela dei singoli ed integrazione degli ordinamenti giuridici
SKU: 9911179005
Trocker Nicolò
24,99 €

Nr. Pagine

The paper illustrates the role and the achievements of the two European Courts – the European Court of Justice and the European Court of Human Rights – in fashioning and promoting Europe’s process of political and legal integration. In the first part the focus is on the judicial activism of the European Court of Justice that from its inception pressed the frontiers of the constitutional development of the newly created Economic Community drawing the line between community law and national law, establishing the principle of direct integration of community law into the national legal orders of the Member States and of the supremacy of community law within its limited but expanding area of competence over any conflicting national law. A decade later it was the Court’s jurisprudence that incorporated fundamental rights resulting from the European Convention on Human Rights and the common constitutional traditions of the Member States into the Community legal order and protected them in the form of «general principles of EC law» as a substantive point of reference and a common code of fundamental values for all those involved – Member States, institutions, natural and legal persons – in the community context. The paper then addresses the Court’s effort to use both the national courts` duty of «purposive interpretation» and its capacity to give preliminary rulings under Article 234 EC to create and develop a comprehensive system of enforcement of the individual’s Community rights and to implement the Community’s policy of judicial cooperation in civil and commercial matters. In the second part of the paper the focus is on the European Court of Human Rights’ continuing contribution to the evolving public law in Europe. Three major developments of the Strasbourg jurisprudence or analyzed and evaluated: the doctrine of « positive obligations», a doctrine derived from the general obligation on member states under Article 1 of the Convention to secure rights for all individuals within their jurisdiction and from the principle of effective interpretation that requires the rights of the convention to be given not a theoretical and illusory but a practical broad and full meaning; the court’s recognition of a national «margin of appreciation» as a structured device for accommodating local qualifications and cultural peculiarities with a universal (not uniform) model of human rights; finally, the recent phenomenon of the «pilot judgments», a tool created by the Court to deal with repetitive complaints that highlight the existence of structural and systemic difficulties in the State concerned and to assist the States in finding the appropriate measures to eliminate the structural and systemic problems identified.

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