Date: 2008
Type: Working Paper
Legal Europeanization as Legal Transformation: Some Insights from Swiss “Outer Europe”
Working Paper, EUI MWP, 2008/32
MAIANI, Francesco, Legal Europeanization as Legal Transformation: Some Insights from Swiss “Outer Europe”, EUI MWP, 2008/32 - https://hdl.handle.net/1814/9017
Retrieved from Cadmus, EUI Research Repository
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.
Cadmus permanent link: https://hdl.handle.net/1814/9017
ISSN: 1830-7728
Series/Number: EUI MWP; 2008/32
Publisher: European University Institute