Legal europeanization as legal transformation : some insights from Swiss 'outer Europe'

Details

Ressource 1Download: BIB_5429E06D4E8E.P001.pdf (374.91 [Ko])
State: Public
Version: author
Serval ID
serval:BIB_5429E06D4E8E
Type
Report: a report published by a school or other institution, usually numbered within a series.
Publication sub-type
Working paper: Working papers contain results presented by the author. Working papers aim to stimulate discussions between scientists with interested parties, they can also be the basis to publish articles in specialized journals
Collection
Publications
Institution
Title
Legal europeanization as legal transformation : some insights from Swiss 'outer Europe'
Author(s)
Maiani F.
Institution details
Institut universitaire européen
ISBN
1830-7728
Issued date
2008
Number
2008/32
Genre
EUI MWP
Language
english
Abstract
The "Europeanization" of non-EU countries' laws is predominantly seen as an "export" of the EU acquis, especially in the case of so-called "quasi-member" states such as Switzerland. Based on an examination of the Swiss experience, this paper highlights the flaws of this conceptualization: the Europeanization of Swiss Law is a highly differentiated phenomenon, encompassing several forms of approximation to EU Law. All of these forms fall short of an "export" of norms, and result in the creation of something new: a "Europeanized law" that is similar to, but qualitatively different from, EU Law. Another drawback of the "export" metaphor is the emphasis it places on the isomorphism of positive legislation. Europeanization goes deeper than that. As shown in this paper, it is a process of transformation involving not only positive law, but also legal thinking. The Swiss case demonstrates how significant such deeper transformations can be: the Europeanization of positive law has induced an alteration of the traditional canon of legal interpretation. It also demonstrates how problematic such transformations can be: the above-mentioned alteration has not given rise to a new and universally accepted canon of interpretation. This reflects the tension between the need for clear "rules of reference" for EU legal materials - which are required in order to restore coherence and predictability to an extensively Europeanized legal system - and the reluctance to give a legal value to foreign legal materials - which is rooted in a traditional understanding of the concept of "law". Such tension, in turn, shows what
deep and difficult transformations are required in order to establish a viable model of legal integration outside supranational structures.
Keywords
adaptation autonome, autonomer Nachvollzug, autonomous adaptation, autonomous implementation of EU Law, interprétation eurocompatible, accords bilatéraux Suisse-UE, interprétation eurocompatible, interprétation dynamique
Create date
28/09/2014 19:36
Last modification date
20/08/2019 15:09
Usage data