Chapter 12 considers the Europeanization of German law, resulting from the integration of Germany into the European Union and its project of harmonization of law. Basic devices for this process are explained, such as the direct effect and supremacy of European law. The tension this has created in German private law is demonstrated with a case study of the European antidiscrimination directive, which Germany reluctantly implemented. The case study presents a dispute under the German domestic regime that was eventually enacted. That dispute involved discrimination in the employment context on the basis of the applicant’s background growing up in East Germany. The tensions between the Europeanization of law and German constitutional law are also discussed.

This chapter considers the circumstances when EU law provisions can be invoked in national courts. The doctrine of direct effect enables an EU law provision to be invoked in a national court when it grants entitlements to individual parties in a sufficiently precise way. Directly effective provisions of the EU Treaties and Regulations can be invoked against both the State and private actors. By contrast, directly effective provisions of Directives can only be invoked against the State. The doctrine of indirect effects requires any national law or procedure to be interpreted so far as possible to comply with all EU law. However, this cannot be done if the interpretation would contradict the wording of the national law or aggravate criminal liability. The doctrine of State liability allows individuals to sue the State for damages for breach of an EU law which grants them individual rights in a number of circumstances: if the State has failed to transpose a Directive, it has not complied with an order of the Court of Justice, it has failed to follow settled case law of that court or it breaches a clear provision of EU law.

In Van Gend en Loos and Costa, the Court stated that EU law was an autonomous legal order which limited the sovereignty of member States. These EU law qualities prevent other laws determining central elements of EU law (‘autonomy of EU law’); grant precedence to EU law over national law (‘primacy of EU law’); allow EU law alone to determine when there is a conflict between it and national law and the consequences of that (‘pre-emption’); and require national authorities to ensure that the EU legal system functions effectively and its authority is sustained (‘fidelity principle’). Historically, most national courts have accepted the authority of EU law over national law, subject to three constraints. First, EU law should not violate fundamental rights recognised in their respective constitutions. Secondly, if it generates significant consequences for the national democracy, the EU law must not be clearly ultra vires. Thirdly, a number of courts will not accept EU law primacy on matters that go to that State’s constitutional identity, most notably those issues over which that court believes national parliaments have the necessary democratic pedigree.

Chapter 5 looks closely into the notion of law of the Union established by the EAEU Treaty. It analyses the sources of law of the Union and proceeds with clarifying their hierarchy and legal force. It also analyses the place of direct applicability, direct effect and primacy in the EAEU pertaining to legal order autonomy. Eventually it turns to the provisions of Member States’ national legislation vis-à-vis EAEU law. The three founding Member States have been deeply involved in Eurasian integration. The process of drafting the EAEU Treaty required alignment with the generally recognised principles of international law, national legislation of Member States, taking into account international experience, but not the least with national constitutions. Therefore, in principle, tensions between the legal orders of the EAEU and its Member States should have been minimized from the outset. This chapter shows that it is not necessarily so in two case studies: Russia and Belarus. The former has had the most controversial encounters with external legal orders, including that of the EAEU, which was eventually ossified in the ensuing constitutional amendments in this regard. The latter has the strictest constitutional limitations, which have direct bearing on the EAEU legal order.

This chapter explores the role of the European court system in establishing the foundations of European criminal law and influencing its subsequent development. It opens with an historical overview of the emergence of the various elements within the judicial system focusing on the Court of Justice of the EU (CJEU) and the European Court of Human Rights. Particular emphasis is placed in the discussion on the contribution of the CJEU to the field of EU criminal law as it evolved during the Union’s formative years. Through its case law, the Court acted at various times as ‘the motor of European integration’ and the arbitrator of disputes over EU competence and the primacy of EU law. The chapter then moves to the contemporary setting of judicial engagement with the principle of mutual recognition by exploring the implications of certain judgments on the European Arrest Warrant. Consideration is given in this discussion to the increasing and progressive emphasis within the jurisprudence on the essential role of the European court system in ensuring due process and safeguarding fundamental rights.

One important aspect of the legal effects of CIL within the EU legal order concerns the questions of whether CIL can be relied upon in EU law-related administrative or judicial proceedings and, correspondingly, whether administrative and judicial authorities are obliged to apply CIL in such proceedings in order to decide the case at hand. This is the problem of the ‘invocability’, ‘enforceability’ or the ‘direct effect’ of EU law. As there has so far only been marginal treatment of the direct effect of CIL (as opposed to that of international agreements), the chapter aims at clarifying whether and to what extent the solutions devised for the direct effect of international agreements can be transferred to CIL, that is, whether the ‘treaty analogy’ holds. In this regard, the chapter pleads not only for a uniform direct effect test for international agreements and CIL norms, but for a uniform direct effect analysis for all provisions of EU law, internal and external alike. The chapter further argues that the existing differences among the various types of EU law norms as well as the specificities of each individual provision can be adequately dealt with by applying a context-sensitive analysis of the respective provision of EU law.

This chapter discusses how customary international law enters the sphere of EU law and to what extent it determines the relationship between the EU institutions, its member states and individual persons. Against this background, it is examined how customary international law is integrated into the EU legal order, what status it enjoys within that legal order, how it can be applied by EU institutions and whether it can serve as a benchmark for judicial review. Assuming that EU law is an autonomous domestic legal system, these questions are discussed from the perspective of EU constitutional law. Here it is argued that the Court of Justice of the European Union, in evaluating these issues, focusses too much on the idea of the autonomy of EU law. In order to provide provisions of customary international law with practical effect the validity of EU law must also be able to be reviewed on the basis of international law standards.

Is there any point in a body of law providing rights that cannot be accessed by individuals? If a prohibition needs a procedure to make it effective in practice, this was the job for which direct effect was originally introduced. This chapter will consider the application of direct effect to primary and secondary Union law. It will only explore binding EU law – it was clearly stated in Grimaldi that recommendations and opinions could not have direct effect as they are not binding. This prevented Mr Grimaldi from relying upon two Commission recommendations which dealt with occupational diseases. Although the recommendations recognised his particular malady, the Belgian Occupational Diseases Fund did not, with the consequence that he was unable to receive compensation. The recommendations were deemed to be clear, unconditional and precise, but it is clear from the wording in Article 288 TFEU that these are not binding. The CJ therefore decided that the recommendations did not create rights upon which individuals may rely before a national court.

It is an understatement to say that law is important in the process of European integration. Understanding the EU without understanding the particular (and peculiar) role that law has assumed in the first decades of European integration is impossible. By making it legally impossible for Member States to resist the application of both specific norms of EU law and the general objectives of European integration, EU law gets European integration ‘done’. The CJEU’s understanding of the EU legal order as something that is hierarchically superior and autonomous from national legal systems, however, irritates national legal systems, which are increasingly articulating limits to the process of ‘integration through law’. This tension has become more pronounced as the EU moves into policy domains that are politically more salient and touch on Member States’ core powersThis indicates a fragility at the core of an EU that is, fundamentally, a legal order.

National judicial systems within the European Union (EU) face pressures toward alignment under the policy agendas for judicial cooperation connected with the Lisbon Treaty and the widespread practice of ‘transnational borrowing’ among courts. Using the CJEU and ECtHR as case studies in the phenomena of judicial culture and transnational judicial communication, this chapter explores how constitutional norms and formal policies interact with contextual influences (including informal judicial interaction and evolving national ideas and practices regarding judging and judicial organisation) to produce increasing legal alignment among the member states. In doing so, the chapter explicitly highlights the need to combine comparative legal analysis with socio-legal research methods in order to understand the evolution of constitutional law.

This chapter develops the book’s conceptual and terminological basis. It proposes to re-discover supranationality as a relative and general concept which can serve as a valuable descriptive-analytical tool for the study of international regimes and law beyond the state. Supranationality is defined by adopting a functional perspective: The chapter argues that elements usually denoted supranational seek a form of legal integration, either horizontally, through international institutions bypassing states in their ability to determine the legal position of individuals, or vertically, in that law beyond the state is entrenched in the domestic legal order in a way that allows individuals to rely on it directly. As a thin conceptual theory renouncing any broader normative vision, the proposed framework may complement and inform more fully-fledged theories such as legal pluralism, global constitutionalism or federalism. The chapter also explores the nexus between the notions of supranationality and community. Drawing on constructivist insights, it demonstrates that the constitution of a (legal) community in the sense of an intersubjective sense of belonging can be regarded both the (social) precondition and product of legal integration.

This chapter tests the assumption that by virtue of the strong supranational adjudication and lawmaking by the Court, the ECHR could be considered supranational law in terms of its effect in domestic legal systems. The hypothesis of vertical integration is verified by adopting a two-fold approach analyzing both the perspective of the Court and the point of view of national legal orders. The first part of the chapter challenges the notion of implementation freedom. Taking a closer look at the Convention level reveals how the ECtHR developed a subtle yet sophisticated framework requiring domestic integration of the Convention’s substance and national courts to uphold and protect ECHR rights. The second part of the chapter looks at how domestic legal orders have received Convention law. Surveying existing studies demonstrates that Convention law may be considered de-facto supranational law, because it is, by and large, directly invocable by individuals vis-à-vis domestic authorities and effectively enforceable within national legal systems. Domestic resistance against the ECtHR, in its current form, must not necessarily be understood as an antithesis to integration, but can equally be regarded epiphenomenal.

Mediation analysis has been called \harder than it looks" (Bullock and Ha 2011) due to difficulties of experimental identification. However, recent work has clarified that, while hard, some experimental designs for mediation can be informative. Other recent work has provided “easier” substitutes for mediation analysis. This chapter has two goals. First, to summarize some of the findings published since Bullock and Ha (2011) and to consider the implications these findings have for mediation analysis. Second, to consider the situations in which a close alternative to mediation analysis would be useful (either as a supplement or a substitute). Such situations often depend on the motivation for the analysis.

Chapter 5 addresses the role of the foundational principles of EU law – primacy, direct effect, consistent interpretation and state liability – in ensuring the proper functioning of the internal market. The EU-specific principles are compared with their equivalents in public international law and in the EEA, the Energy Community, the ECAA and the Transport Community legal orders. The analysis helps to determine the implications of a possible absence of the supranational principles in the agreements exporting the acquis on the effectiveness of the acquis transferred to third countries by means of agreements operating under public international law.