La comparaison comme technique de la Cour de Justice des Communautés européennes

Abstract : The purpose of the research is the use by the Community Court of solutions having a national origin. An introductory chapter is devoted to the research methodology. The first topic is the definition of the research object and the orientation of the analysis. The second aspect is the determination of a documentary basis for the research. The comparative technique analysis itself was developed in two different directions. The first part of the thesis is a methodological formal analysis. Here we ?translated? the comparative technique as fairly different methods of the judge. On one side we differentiated the interpretative use of this technique as a ?standard? interpretative comparison and then a ?unifying? interpretative comparison. On the other hand we analyzed the comparative development of the Community law by the judge. At first we identified a ?diversity? creative comparison. Then we recognized a ?standard? creative comparison that allowed the judge to develop the European law on the basis of some principles shared by municipal laws. In the second part of the thesis we build a functional analysis of the role of comparison technique in the evolution of Community Law. At first we underlined some 'administrative' functions of the comparative technique. At this level the comparison was used by the judge to build some remedies for the private claimants. Then the comparison allowed the emergence of mechanisms to ensure for the judge a flexible control of the Community institutions. At a whole new level the comparative technique accomplished a 'constitutionalisation' of the judge and the Community legal system. This was especially the case with the use of comparative solutions with a Federal origin in order to ensure the dynamic relationships between the Community law and national laws. Then the comparative technique has strengthened and created the mechanisms for the protection of the individual in the Community legal system (initially with bypass solutions, then by emergence of rights of defence and finally by emergence of Community human rights). The general conclusion of the thesis focused on the justification for the use of this technique. The answer is the ?specific? nature of the judge and the Community legal system. Finally the lack of sovereignty (as en expression of ?competence of competence?) of the Community-fundamentally different from a federation state- explains and justifies the use of the comparison technique. In this way the use of the comparison by the Community Court is an expression of the deep real nature of the judge and the Community legal system.
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Theses
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http://docnum.univ-lorraine.fr/prive/NANCY2/doc504/2008NAN20018.pdf
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Submitted on : Thursday, March 29, 2018 - 2:01:49 PM
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  • HAL Id : tel-01752918, version 1

Citation

Remus Titiriga. La comparaison comme technique de la Cour de Justice des Communautés européennes. Droit. Université Nancy 2, 2008. Français. ⟨NNT : 2008NAN20018⟩. ⟨tel-01752918⟩

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