On the Application of European Law in (Not Only) the Courts of the New Member States: ‘Don’t Do as I Say’?

Abstract

In the classical narratives of the story called European integration, national judges are said to have a ‘mandate’ under European law: they are ‘empowered’ by EC law or, in the less thrilling versions of the story, they simply become ‘Community judges’. Not only are national judges obliged to apply substantive EC law, they are also requested to apply it in the way required by the Court of Justice. How, precisely, national judges are asked to apply EC law in domestic courts has traditionally been portrayed through the case law of the Court of Justice; not much attention has been paid to the reality in national courts. Over the years, the case law of the Court of Justice has created an image of a veritable European judicial Hercules: a judge who reads in many of the official languages of the European Union; who knows not only all the relevant national and European law, which he or she appliesex officio, but also engages in comparative interpretation of the law; who identifies him- or herself with the Europeanteloswhich he or she is applying on the national level; and so on.