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Title: The judicial harmonisation of national remedies and procedural rules in a differentiated Europe
Author: Dougan, M.
Awarding Body: University of Cambridge
Current Institution: University of Cambridge
Date of Award: 2002
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A traditional 'integration through law' approach to EC legal studies portrays national remedies and procedural rules as a serious problem for the Community legal order: they offer fragmented standards of judicial protection in respect of Treaty norms being implemented at a domestic levels, and thus distort competitive conditions within the Common Market and / or undermine the principle of equal treatment between Union citizens. The purported solution is to manufacture a harmonised system of legal protection within Europe. Yet the recent history of European union suggests that the assumptions of "integration" and "uniformity" upon which this analysis is based are now ripe for reconsideration. The alternative values of "disintegration" and "differentiation" have attained the status of central regulatory principles within the Community legal order, and prompt a process of doctrinal reconsideration, seeking to update certain assumptions about the Treaty system which are too closely wedded to an untenable ideal of integration. Within the particular sphere of Community intervention in the domestic systems of judicial protection, this process of doctrinal reconsideration suggests that we should abandon the predominant "integration through law" in favour of an alternative "sectoral" approach. The Treaty's pursuit of uniformity at a substantive level, and thus its need for uniformity at a remedial level, changes according to the field of Community activity in question. In some sectors (such as state aids and competition law), uniformity remains a valid goal of Treaty policy, and the harmonisation of domestic remedies and procedural rules might well seem justified. In other sectors (such as environmental consumer and employee protection), the Treaty does not harbour ambitions of achieving any genuine degree of normative uniformity, and the principles of subsidiary and proportionality suggest that we should adopt a correspondingly more restrained interpretation of the need for remedial approximation. These two completing academic models provide the framework for a critical analysis of the European Court of Justice's caselaw on national remedies and procedural rules. Such an analysis demonstrates, in particular, that the Court's most recent jurisprudence rejects implicitly the pressure of greater remedial harmonisation exerted by an "integration through law" approach. Instead, the ECJ seems sympathetic to the challenges of doctrinal reconsideration stimulated by the rise of regulatory differentiation within the Community legal order: its caselaw reflects a more limited sympathy with the imperative of uniformity, such as forms the basic conceptual premises of the alternative "sectoral" model.
Supervisor: Not available Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID:  DOI: Not available