Derecho Comparado Europeo: razones para una «comparación reforzada» y papel del TJUE
| Autor | Sabrina Ragone |
| Cargo | Profesora titular de Derecho Público Comparado, acreditada como catedrática |
| Páginas | 299-325 |
© UNED. Revista de Derecho Político
N.º 112, septiembre-diciembre 2021, págs. 297-325
299
Fecha recepción: 30/03/2021
Fecha aceptación: 18/05/2021
EUROPEAN COMPARATIVE LAW:
Reasons for «Enhanced Comparison»
and Role of the CJEU
SABRINA RAGONE*
Universidad de Bolonia
1. INTRODUCTION
This article builds the proposal of two novel ideas upon a critical reconstruction
of the concept and scope of European Law. Within the context of the European legal
space, a more defined and restricted area has to be taken into account, which is named
‘inner core’, where legal comparison has become more likely and possibly more suc-
cessful. This statement is justified and contrasted to normative, organizational and
institutional factors, in light of the evolution of the methodology in European schol-
arship.In order to further enhance the comparative dimension of European law, the
role of the CJEU becomes essential. Departing from previous studies on the use of
comparative law, this article offers a new approach to case selection, in order to aug-
ment its methodological grounds.
Therefore, a comprehensive concept of European law, composed by EU law,
domestic sources of law and norms of the European system of protection of human
rights, needs to be endorsed, in order to grasp its intrinsically comparative nature.
In this sense, European law must be understood as strictly connected to the concept
of European legal space. After a critical analysis of the different scholarly interpreta-
tions of European law at the crossroads between national, international and sui generis
norms, since the beginning of European integration (§ 2), the text explains through
a threefold argumentative construction why Europe represents the ideal endeavor for
* Profesora titular de Derecho Público Comparado, acreditada como catedrática. Universidad de
Bolonia, Strada Maggiore 45 – 40125 Bologna. E-mail: sabrina.ragone2@unibo.it. ORCID ID: 0000-
0002-9516-503X The author would like to thank Armin von Bogdandy, Iris Canor, Pedro Cruz Villa-
lón, Anuscheh Farahat, Adoración Galera Victoria and Lucio Pegoraro for the insightful discussions on
previous versions of this text.
SABRINA RAGONE
© UNED. Revista de Derecho Político
N.º 112, septiembre-diciembre 2021, págs. 297-325
300
‘enhanced comparison’, intended as methodologically sound comparison reaching
effective results through mutual imitations.
First, the normative and institutional framework of the European legal space is
peerless with respect to other regions, in the light of the constitutional quality of the
links among the different legal systems, i.e., the common principles established by
the EU Treaties and the guarantees ensured by the European Convention on Human
Rights. The paramount consequences of this double link are that, on the one hand,
any act adopted by domestic or European authorities is presumed to be consistent
with a common set of values, and, on the other hand, any act can and shall be meas-
ured against the same standards. Furthermore, there are institutions in charge of
enforcing such values (section 3.1). Such a framework creates extraordinary conditions
for presuming the comparability of the systems belonging to the European legal
space, in particular to what I call ‘inner core’, although a (less strict) justification of
the choice of the case studies is still required.
Second, the European legal space is characterized by several overlapping inter-
connections: vertically, horizontally, asymmetrically and cross-cutting. From this
perspective, there is a particular area in which the peculiarities of European law
emerge clearly, notably after the entry into force of the Lisbon Treaty: the regulation
and protection of human rights. In order to explain the peculiarity, three elements
are analyzed, namely the overlap of three standards of protection; the existence of
substantive clauses fixing criteria to solve potential conflicts of norms; the role played
by judicial bodies in the interpretation of such criteria, especially by the Court of
Justice of the EU (CJEU). After describing the reasoning of the judges as an exercise
of comparative methodology, section 3.2 deals with the positions adopted by the
CJEU in cases of conflicts between standards of protection of human rights, intro-
ducing and discussing the concept of common constitutional traditions.
Third, taking into account the common normative and institutional framework,
it becomes clear that mutual imitations in this context can be more effective, if real-
ized through the proper methodology. To argue that, section 3.3 states that, for any
practical target that has been allotted to legal comparison, within the inner core of
the European legal space the odds of successful circulation of legal solutions are
higher. Further causes of this phenomenon are the Europeanization of domestic
administrations and the implementation of European norms and models at the
domestic level.
As a result, the application of legal comparison within the jurisprudence of the
CJEU becomes an essential element for European law, but there is the need for
improving and adjusting the methodological toolbox used by the Court. Section 4
proposes a threefold approach in order to build a new methodology, consistent with
qualitative (and not quantitative) standards for the selection of the case studies. The
classification of the legal systems into models would be the premise of the work of
the Court, starting with the normative model adopted by the Member State involved
in the case. Using this model as a yardstick, the most different model would need to
Para continuar leyendo
Solicita tu prueba