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 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.

In exploring supremacy, this chapter aims to explain how the EEC became a new form of international organisation, or a supranational organisation, the only one of its kind. It will discuss the development of a supranational polity with strong independent powers and the establishment of founding principles which are key to the autonomy of the EU as we know it today. It will also highlight the attitudes of the member states. The chapter begins with a summary of the seminal case, van Gend en Loos. This case is often discussed as a revolution in EU law but recent research suggests that this decision was in fact the culmination of a gradual change in the opinion of legal scholars on how EU law should operate. The case will serve as a launch pad into discussion of the controversies that continue to give rise to lively debate on EU law and European integration. While exploring the facets of the concept, the chapter will intertwine debates about the legislative and judicial dimensions. It will also consider the theoretical and practical legal and political challenges to which it has given rise. The chapter will end with consideration of why supremacy was accepted.

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.

The conclusion summarizes the supranational aspects of the ECHR and reflects on the wider narrative of supranationalization of the ECHR, including its driving factors and countertrends. It further demonstrates that growing resistance towards the ECtHR, as far as it goes beyond system inherent criticism, may partly be the result of increased openness and integration in the first place and could in fact lead to a refinement of Convention law. The ECHR’s supranational aspects also lend themselves to a communitarian perspective. The conclusion therefore argues that the findings of the study allow to give meaning to the notion of Convention community which is characterized by Convention rights as community interest norms, for the protection of which the ECtHR enjoys an inalienable core of autonomy, membership of domestic authorities and natural and legal persons as well as subsidiarity and moderated supremacy of Convention law as ordering principles.

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.

This chapter discusses the Court’s 1964 judgment, Costa v. ENEL, where the Court declared the supremacy of European law, thus requiring national courts to resolve conflicts between European law and national law in favour of the domestic application of European law. The supremacy of European law is often understood as the partner of the direct-effect doctrine and the result of the Court’s ‘functionalist’ approach to the development of the European legal order. This chapter demonstrates that the supremacy doctrine of European law was also motivated by the Treaty of Rome’s prohibition on the unilateral adoption of safeguard measures by the member states, as shown both by the text of the Court’s judgment and by the writings of judge Lecourt.