EU law and national law : a common legal system

Abstract

The broad objective of this Working Paper is to elucidate the relationship between EU law and national law. One side of the coin of this constellation, the application of Union law by national courts and authorities, has already attracted considerable attention in case law and legal writings and will therefore be treated rather summarily. This exposé relating to the status of Union law in the national legal orders will be supplemented by a brief chapter on the status of public international law in the Union legal order. The ambition is to throw into relief the differences which emerge when comparing the relationship between public international law and Union law and that between Union law and national law. The more specific objective and main focus of the present study will be on what can be described as the other side of the coin, namely the application of national law by Union institutions and bodies. The traditional assumption has been that Union institutions and bodies, while they may have to take national law into account in some form or another, do not apply national law, the interpretation and application of which is left to national courts and authorities. Hence, this aspect has attracted less attention in legal doctrine. This Working Paper aims at contributing to filling this gap by providing examples, most of which are of fairly recent origin, of situations where the traditional assumption is rebutted and Union institutions and bodies can indeed be said to be called upon to apply national law. To put the question of application of national law by Union institutions and bodies into its proper perspective, this discussion will be preceded by a survey of instances where Union law and national law blend more generally, including the creation of ’composite’ procedures and ’hybrid’ bodies or structures. In a concluding chapter, it will be argued that these tendencies are indicative of the fact that while the emergence of Community (now Union) law gave birth to a new legal order, distinct from national law, these historically distinct legal orders now form a common legal system. This chapter will also contain a subchapter on the legal challenges facing Union institutions and bodies when called upon to apply national law, including the question of whether national law, then, becomes a question of law or of fact.