Comparing national and EC law : the problem of the level of analysis

Abstract

While there is no shortage of works devoted to the use of comparative law by European Community institutions, and in particular by the European Court of Justice, reflections devoted to the problems involved in comparisons between national and EC law have remained extremely rare. Yet, there are well-known examples of this kind of comparative works. Most scholars interested in Community law are familiar with books such as Stein and Sandalow's Courts and Free Markets or Cappelletti, Seccombe and Weiler's Integration through Law, the primary aim of which is an assessment of the operation of the Community in the light of the American experience. Other studies attempt to import into Community law some of the lessons derived from the analysis of national legal systems. Should we then take the relative scarcity of methodological reflexions as a clue that this kind of exercise does not involve specific difficulties? I think not. Indeed, the thrust of this paper is that there are methodological difficulties linked to such cross-level comparisons, dnd that their neglect has been the source of misunderstandings or of hidden bias in quite a few analyses. I shall also argue that these problems are of considerable importance, as there appears to be a growing need for comparisons embracing elements of national and EC law. Before addressing these methodological difficulties, it is therefore appropriate to dwell for a moment on the reasons that may lead one to venture into comparisons of this kind.