The Concept of Communitarian Law in the Jurisdiction of the European Court of Justice and in Legal Theory

Abstract

In the course of the past decades communitarian law has developed as a field of law whose theoretical explanation seems to present considerable difficulties. The traditional models of monism and dualism cannot sufficiently explain the position of communitarian law between international and municipal law. In addition the concepts of the so-called traditionalism and autonomics deal with only a part of the problem.

The theoretical difficulties concentrate on the term “supranationality”, which on one hand may provide for mediation between the political actors, from the legal point of view however is a weak compromise. The article attempts to provide an overview of the relevant statements given by the European Court of Justice (ECJ) concerning the systematic of communitarian law. In the jurisdiction of the Court there occur terms like “autonomy”, “sovereign rights” and “constitutional charter”. Behind the application of such terms we may see the development of the concept which spans the period between the sixties and the nineties.

In the next part of the article we attempt to critically analyse the jurisdiction of the ECJ in the light of concepts drawn from legal theory. As a starting point we have turned to the teachings of Hart and Kelsen, i.e. the most significant legal theorists of the twentieth century. Hart’s concept is characterized by empiric criteria, according to which the validity and identity of a legal order is explained as the result of the social acceptance of norms in the form of the so-called rule of recognition. On the other hand Kelsen constructs a legal order on the basis of the basic norm which does not have a factual character but is only the logical condition for the unity of a legal system. By comparing the legal theoretical concepts with the argumentation of the ECJ we find that the jurisdiction of the Court is grounded on a Constructivist approach. However, the basic norm of communitarian law has not been identified in convincing terms.

The phenomenon of communitarian law evidently calls for a modification of the Constructivist approach. The function of the theoretical model according to Kelsen is the clearing away of systematic argumentation from factors that are not part of the law (policies and power). Such factors impede the transparency of a legal system and thus also legal certainty.