Pleading for European Comparative Administrative Law

Abstract

This article pleads for reinforced communication and exchange between European and national courts, both in a vertical way, from the national to the European courts, and in a horizontal one, among national courts from different Member States. Building an integrated legal order needs a lot of communication and exchange between the constituent parts, quite more than is presently seen in the European Union. Courts at all levels will greatly benefit from knowing the case law from different jurisdictions which in the end are charged with the application of the same European rules. The barriers due to the specific legal traditions now separating different legal orders could be lowered thanks to a better mutual knowledge and understanding, making a shared European legal culture possible. 1 What is the Place for Comparative Law in Europe? The debate has been quite intense in the past years on the question of whether or not national legal systems are converging under the pressure of European law. In general terms, the question is probably begging different answers positioning themselves along the blurred line between a half full and half empty glass. Serious research will probably produce nuanced results, with more or less, a lot or very little convergence according to different issues, but then again the data from each sector will be liable to different readings, as has been the case concerning judicial review. A different question has been underlying the debate, this one focusing on the role, if any, for comparative law in Europe. To put it simply, the argument is that, provided that legal systems are converging, the same possibility of using comparative law will evaporate. This paper endeavours to show that comparative law’s role is now more important than ever as a direct result of the convergence process. While this process is very complex, it has the potential to last forever, as perfect convergence always eludes its pursuers. Research here has been massive, and positions varied: for a selection C. Kilpatrick, T. Novitz and P. Skidmore (eds.) The Future of Remedies in Europe (Oxford, Hart, 2000); more recently and for complete references see M. Eliantonio Europeanisation of Administrative Justice? (Groningen, Europa Law Publishing, 2008).